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Plant Non-Specific Expenses Customer Operations Expenses § 36.411 Operating taxes—Account 7200 (Class B Telephone Companies); Accounts Network Operations Expenses— Marketing—Account 6610 (Class B 7210, 7220, 7230, 7240, and 7250 (Class A Account 6530 (Class B Telephone Telephone Companies); Accounts Telephone Companies). Companies); Accounts 6531, 6532, 6611 and 6613 (Class A Telephone I 28. Revise § 36.501 to read as follows: 6533, 6534, and 6535 (Class A Companies) § 36.501 General. Telephone Companies) Services—Account 6620 For separations purposes, reserves I 27. In § 36.411, revise the section and deferrals include the following heading to read as follows: accounts:

Other Jurisdictional Assets—Net ...... Account 1500. Accumulated Depreciation ...... Account 3100. Accumulated Depreciation—Property Held for Future Telecommuni- Account 3200. cations Use. Accumulated Amortization—Capital Leases ...... Account 3400 (Class B Telephone Companies); Account 3410 (Class A Telephone Companies). Net Current Deferred Operating Income Taxes ...... Account 4100. Net Noncurrent Deferred Operating Income Taxes ...... Account 4340. Other Jurisdictional Liabilities and Deferred Credits—Net ...... Account 4370.

I 29. In § 36.505, revise the section chapter or § 54.311 of this chapter result in the destruction or adverse heading to read as follows: (which relies on this part), whichever is modification of critical habitat. Section applicable. 4 of the Act requires us to consider § 36.505 Accumulated amortization— economic and other relevant impacts of Tangible—Account 3400 (Class B * * * * * Telephone Companies); Accumulated [FR Doc. 04–5015 Filed 3–16–04; 8:45 am] designating any particular area as amortization—Capital Leases—Account BILLING CODE 6712–01–P critical habitat. We solicited data and 3410 (Class A Telephone Companies). comments from the public on all aspects of this designation, including data on * * * * * economic and other impacts of the I DEPARTMENT OF THE INTERIOR 30. Amend § 36.631 by revising designation. paragraphs (a) introductory text, (c) introductory text, and (d) introductory Fish and Wildlife Service DATES: This rule is effective April 16, text to read as follows: 2004. 50 CFR Part 17 ADDRESSES: Comments and materials § 36.631 Expense adjustment. RIN 1018–AG88 received, as well as supporting (a) Until December 31, 1987, for study documentation, used in the preparation areas reporting 50,000 or fewer working Endangered and Threatened Wildlife of this final rule are available for public loops pursuant to § 36.611(h), the and Plants; Final Designation of inspection, by appointment, during expense adjustment (additional Critical Habitat for Cirsium loncholepis normal business hours at the Ventura interstate expense allocation) is equal to (La Graciosa thistle) Fish and Wildlife Office, U.S. Fish and the sum of the following: AGENCY: Fish and Wildlife Service, Wildlife Service, 2493 Portola Road, * * * * * Interior. Suite B, Ventura, CA 93003. (c) Beginning January 1, 1988, for FOR FURTHER INFORMATION CONTACT: ACTION: Final rule. study areas reporting 200,000 or fewer Field Supervisor, Ventura Fish and working loops pursuant to § 36.611(h), SUMMARY: We, the U.S. Fish and Wildlife Office (see ADDRESSES section) the expense adjustment (additional Wildlife Service (Service), designate (telephone 805/644–1766; facsimile interstate expense allocation) is equal to critical habitat pursuant to the 805/644–3958). the sum of paragraphs (c)(1) through (2) Endangered Species Act of 1973, as SUPPLEMENTARY INFORMATION: of this section. After January 1, 2000, amended (Act), for Cirsium loncholepis the expense adjustment (additional (La Graciosa thistle). Approximately Designation of Critical Habitat Provides interstate expense allocation) for non- 41,089 acres (ac) (16,628 hectares (ha)) Little Additional Protection to Species rural telephone companies serving are within the boundaries of the critical In 30 years of implementing the Act, study areas reporting 200,000 or fewer habitat designation. The designated the Service has found that the working loops pursuant to § 36.611(h) critical habitat is in San Luis Obispo designation of statutory critical habitat shall be calculated pursuant to § 54.309 and Santa Barbara Counties, California. provides little additional protection to of this chapter or § 54.311 of this Critical habitat identifies specific most listed species, while consuming chapter (which relies on this part), areas, both occupied and unoccupied, significant amounts of available whichever is applicable. that are essential to the conservation of conservation resources. The Service’s (d) Beginning January 1, 1988, for a listed species and that may require present system for designating critical study areas reporting more than 200,000 special management considerations or habitat has evolved since its original working loops pursuant to § 36.611(h), protection. Section 7(a)(2) of the Act statutory prescription into a process that the expense adjustment (additional requires that each Federal agency, in provides little real conservation benefit, interstate expense allocation) is equal to consultation with and with the is driven by litigation and the courts the sum of paragraphs (d)(1) through (4) assistance of the Service, ensure that rather than biology, limits our ability to of this section. After January 1, 2000, any action authorized, funded, or fully evaluate the science involved, the expense adjustment (additional carried out by such agency is not likely consumes enormous agency resources, interstate expense allocation) shall be to jeopardize the continued existence of and imposes huge social and economic calculated pursuant to § 54.309 of this an endangered or threatened species or costs. The Service believes that

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additional agency discretion would determinations on existing proposals are of the C. loncholepis populations. allow our focus to return to those all significantly delayed. Recent research suggests that the actions that provide the greatest benefit The accelerated schedules of court populations of C. scariosum in the to the species most in need of ordered designations have left the Mount Pinos region and the Peninsular protection. Service with almost no ability to Ranges are related to C. loncholepis and provide for adequate public may collectively represent a single Role of Critical Habitat in Actual participation or to ensure a defect-free taxon (David Keil, CPSU, in litt. 2003). Practice of Administering and rulemaking process before making Based on this analysis, Dr. Keil may Implementing the Act decisions on listing and critical habitat propose a new taxon, C. scariosum var. While attention to and protection of proposals due to the risks associated citrinum; the new taxon would not habitat is paramount to successful with noncompliance with judicially- supersede the current nomenclature conservation actions, we have imposed deadlines. This in turn fosters until it is peer reviewed and published. consistently found that, in most a second round of litigation in which Dr. Keil intends to publish his new circumstances, the designation of those who fear adverse impacts from treatment of the genus Cirsium in The critical habitat is of little additional critical habitat designations challenge Flora of North America (FNA). value for most listed species, yet it those designations. The cycle of Publication of the FNA volume consumes large amounts of conservation litigation appears endless, is very containing the genus Cirsium will likely resources. Sidle (1987) stated, ‘‘Because expensive, and in the final analysis occur between 2005 and 2006 (Dieter the ESA can protect species with and provides relatively little additional Wilken, Santa Barbara Botanical without critical habitat designation, protection to listed species. Garden, in litt. 2003). Because of delays critical habitat designation may be The costs resulting from the in finalization of this taxonomic redundant to the other consultation designation include legal costs, the cost research, we determined to proceed requirements of section 7.’’ Currently, of preparation and publication of the with the designation of critical habitat only 25 percent (306 species) of the designation, the analysis of the for C. loncholepis based on its current 1,211 listed species in the U.S. under economic effects and the cost of taxonomic status. When the proposed the jurisdiction of the Service have requesting and responding to public taxonomic changes are published, we designated critical habitat. We address comment, and in some cases the costs will as necessary re-evaluate, within the of compliance with the National the habitat needs of all 1,211 listed constraints of available funding, the Environmental Policy Act (NEPA), all species through conservation critical habitat designation and the are part of the cost of critical habitat mechanisms such as listing, section 7 listing of C. loncholepis. designation. None of these costs result consultations, the section 4 recovery Please refer to the proposed critical in any benefit to the species that is not planning process, the section 9 designation (66 FR 57559) for an already afforded by the protections of protective prohibitions of unauthorized overview of Cirsium loncholepis the Act enumerated earlier, and they take, section 6 funding to the States, and biology, historic range, land ownership directly reduce the funds available for and management, and a list of the on- the section 10 incidental take permit direct and tangible conservation actions. going threats to the species. Since the process. The Service believes it is these publication of the proposed critical measures that may make the difference Background habitat, subsequent research on C. between extinction and survival for We proposed to designate critical loncholepis has added to our many species. habitat for Cirsium loncholepis (La understanding of the species. For Procedural and Resource Difficulties in Graciosa thistle) on November 15, 2001 example, demographic studies found Designating Critical Habitat (66 FR 57559), along with Eriodictyon that the survival and rapid growth of capitatum (Lompoc yerba santa) and seedlings to a large vegetative (non- We have been inundated with Deinandra increscens ssp. villosa flowering) state and large flowering lawsuits for our failure to designate (Gaviota tarplant). We designated final individuals were the main demographic critical habitat, and we face a growing critical habitat for Eriodictyon influences driving population growth number of lawsuits challenging critical capitatum and Deinandra increscens rate in the populations studied (Lea habitat determinations once they are ssp. villosa on November 7, 2002 (67 FR 2002; Teed 2003). An investigation of made. These lawsuits have subjected the 67968), but did not designate C. seedling ecology found that seedlings Service to an ever-increasing series of loncholepis due to ongoing analysis of tolerate saturated soils better than court orders and court-approved its taxonomic status. larger, more mature individuals, and settlement agreements, compliance with Dr. David Keil is currently studying higher seedling mortality occurs if soils which now consumes nearly the entire the taxonomic relationship between dry out quickly (Huber 2003). This listing program budget. This leaves the Cirsium scariosum (elk thistle) and C. study also found that mice forage on Service with little ability to prioritize its loncholepis (David Keil, California seedlings and contribute to seedling activities to direct scarce listing Polytechnic State University, San Luis mortality. Field observations suggest resources to the listing program actions Obispo (CPSU), pers. comm. 2002). A that C. vulgare (bull thistle), an invasive with the most biologically urgent highly variable species complex, C. non-native species, may also threaten species conservation needs. scariosum occurs in montane wetlands local populations of C. loncholepis due The consequence of the critical throughout California including the to competition (Tina Teed, CPSU, pers. habitat litigation activity is that limited Klamath Ranges, the Cascade Ranges, comm. 2002). The population reported listing funds are used to defend active the Sierra Nevada, the Transverse for Monterey County was erroneously lawsuits, to respond to Notices of Intent Ranges, the South Coast Range, and the identified as C. loncholepis and is not (NOIs) to sue relative to critical habitat, Peninsular Ranges (Keil and Turner being considered a component of this and to comply with the growing number 1993). A small number of C. scariosum new taxon (D. Keil, pers. comm., 2002). of adverse court orders. As a result, populations occur at one of the Changes in land managers and the listing petition responses, the Service’s headwaters of the Santa Maria River in status of conservation easements within own proposals to list critically the Mount Pinos region, less than 95 the proposed critical habitat units have imperiled species and final listing miles (mi) (153 kilometers (km)) inland occurred since publication of the

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proposed rule. The Coastal Conservancy second public comment period closed conservation biology. All four of the now holds a conservation easement for on June 6, 2002. peer reviewers supported the proposal the western portion of the private parcel In August 2002, we agreed through a and provided us with comments, which owned by the Unocal Corporation. The joint stipulation with the plaintiffs are included in the summary below and Center for Natural Land Management (Southwest Center for Biological incorporated into the final rule. manages the parcel owned by the Diversity and California Native Plant We reviewed all comments received County of Santa Barbara (Rancho Society) to a 1-year extension on the from the peer reviewers and the public Guadalupe Dunes County Park) that was publication date of a final rule for for substantive issues and new formerly managed by the Trust for Cirsium loncholepis critical habitat to information regarding critical habitat Public Lands. This County of Santa October 25, 2003. A delay in publication and Cirsium loncholepis, Eriodictyon Barbara parcel is south of the Unocal was proposed by the plaintiffs because capitatum, and Deinandra increscens parcel and supports suitable habitat of the uncertainty in the taxonomic ssp. villosa. We previously addressed though no plants have been documented status of C. loncholepis. (Please refer to comments regarding critical habitat for from that location. The Guadalupe- the Background section of this rule for E. capitatum and D. increscens ssp. Nipomo Dunes National Wildlife Refuge more information regarding C. villosa in a separate rule that did not is currently negotiating the development loncholepis taxonomic issues.) A final include C. loncholepis (67 FR 67968). A of a conservation easement on the entire rule designating critical habitat for the peer review comment relating to the Unocal parcel. The dune area and other two species was issued October uncertainty in the taxonomic status of C. shoreline of the Santa Maria River 25, 2002 (67 FR 67968, November 7, loncholepis prompted the separation of mouth would then be managed as part 2002). C. loncholepis from the final critical of the refuge. Long-term management On September 12, 2003 we filed with habitat designation for the other two plans for C. loncholepis have not yet the court a motion to modify its species. Stipulated Order Regarding Critical been developed for any of these areas. The comments were grouped Habitat Designation, seeking additional according to peer review or public Previous Federal Action time due to the continued uncertainty comments. Two general issues arose in A proposed rule to list Cirsium regarding the taxonomic status of loncholepis and three other species, as Cirsium loncholepis and because the public comments that related endangered was published in the appropriations provided by Congress in specifically to the proposed critical Federal Register on March 30, 1998 (63 fiscal year 2003 were insufficient to habitat determination. These comments FR 15164). Please refer to the proposed cover this action. On November 6, 2003, are addressed in the summary below. rule listing the species for information the judge denied our motion for further We did not receive any comments on on previous Federal actions prior to extension. The Service is issuing this the draft economic analysis of the March 30, 1998 and to the proposed designation in compliance with the proposed determination. However, we designation of critical habitat (66 FR court’s order. did receive one comment on economic 57559, 57564) for information on issues during the first comment period previous Federal actions prior to Summary of Comments and on the proposed designation. Recommendations November 15, 2001. The proposed Peer Review Comments critical habitat rule also contains We contacted appropriate Federal, information regarding the litigation State, and local agencies, scientific (1) Comment: A peer reviewer history related to the listing and organizations, and other interested suggested that we delay publication of designation of critical habitat for this parties and invited them to comment on a final rule for Cirsium loncholepis species (Southwest Center for Biological the proposed critical habitat for the pending the determination of its Diversity and California Native Plant three species. In addition, we invited taxonomic status. Recent research on C. Society v. U.S. Fish and Wildlife Service public comment through the publication loncholepis raises significant questions et al. (Case No. C99–2992 (N.D.Ca.)). of a notice in the San Luis Obispo regarding the taxonomy of the species. The proposed rule to designate Tribune on November 18, 2001, and the Our Response: We acknowledge the critical habitat for Cirsium loncholepis Santa Barbara News-Press on November uncertainty in the taxonomy of Cirsium and two other species was signed on 27, 2001. loncholepis. In 2002, we discussed with November 2, 2001, and published in the We received individually written the plaintiffs, the Center for Biological Federal Register on November 15, 2001 letters from 11 parties, which included Diversity and California Native Plant (66 FR 57559). In the proposal, we 4 designated peer reviewers, 1 Federal Society, appropriate action on the determined it was prudent to designate agency, and 1 State agency. Of the 11 critical habitat designation given the approximately 66,830 ac (27,046 ha) of parties responding individually, 6 questions raised by recent review of land in Santa Barbara and San Luis supported the proposed designation, 3 Cirsium loncholepis taxonomy (Please Obispo Counties as critical habitat for C. were neutral, and 2 were opposed. Of refer to the Background section of this loncholepis, Eriodictyon capitatum, and the responding parties, five commented rule for information regarding the study Deinandra increscens ssp. villosa. specifically on Eriodictyon capitatum of the taxonomic relationship of C. Publication of the proposed rule opened and Deinandra increscens ssp. villosa, loncholepis and C. scariosum.). We a 60-day public comment period, which while three made general comments for agreed, through a joint stipulation with closed on January 14, 2002. all three taxa, and three commented the plaintiffs, to a 1-year extension until On May 7, 2002, we published a specifically on Cirsium loncholepis. October 25, 2003 for completion of the notice announcing the reopening of the In accordance with our peer review final critical habitat determination for C. comment period on the proposal to policy published on July 1, 1994 (59 FR loncholepis. However, resolution of the designate critical habitat for Cirsium 34270), we solicited independent taxonomic status of C. loncholepis did loncholepis, Eriodictyon capitatum, and opinions from four knowledgeable not occur during the 1-year extension. Deinandra increscens ssp. villosa, and a individuals who have expertise with the Given the continuing uncertainty notice of availability of the draft species, with the geographic region regarding resolution of the taxonomic economic analysis on the proposed where the species occurs, and/or issue, the Service determined to proceed determination (67 FR 30641). This familiarity with the principles of with the final determination.

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(2) Comment: One peer reviewer plants (i.e., above-ground expression) in protect wetland habitat on the property recommended that we include all a population varies annually due to a should be beneficial for C. loncholepis apparently suitable unoccupied habitats number of factors, including the amount as well as the California tiger within the range of the species in our and timing of rainfall, temperature, soil salamander. We included the Can˜ ada de critical habitat designation. The conditions, and the extent and nature of las Flores unit in our critical habitat reviewer stated that it is unclear from the seedbank. designation because it contains the the proposed rule how many We recognize that designation of primary constituent elements and unoccupied areas or unsurveyed areas critical habitat may not include all of characteristics that make it essential for within the historical range of these taxa the habitat areas that may eventually be the conservation of C. loncholepis. have been excluded from the proposed determined to be necessary for the rule. Including these areas would recovery of the species. Critical habitat Public Comments improve the chances for recovery by designations do not signal that habitat Issue 1: Site-Specific Areas and Other increasing the habitat that would be outside the designation is unimportant Comments protected and thus available for or not required for recovery. Areas (4) Comment: A commenter requested colonization. outside the critical habitat designation that the Oceano Dunes State Vehicular Our Response: We acknowledge that will continue to be subject to all areas within the historical range of conservation actions that may be Recreation Area be excluded from the Cirsium loncholepis have not been implemented under section 7(a)(1) of Pismo-Orcutt unit of Cirsium surveyed. It is possible that suitable the Act and to the regulatory protections loncholepis critical habitat. Designating habitat for the taxon exists but remains afforded by the section 7(a)(2) jeopardy critical habitat in this area would unidentified. While additional surveys standard and the applicable diminish, if not completely eliminate, would help in further defining the prohibitions of section 9 of the Act, as opportunities for public use of the distribution of C. loncholepis, we are determined on the basis of the best dunes for recreational activities. The required to designate as critical habitat available information at the time of the Oceano Dunes State Vehicular those areas we know to be essential to action. Recreation Area is not necessary for the the conservation of the species, using (3) Comment: A peer reviewer survival and recovery of the species the best information available to us. We commented that the Can˜ ada de las when considering the large area included in our critical habitat Flores unit of Cirsium loncholepis (approximately 44,000 ac) that would be designation areas with the soil types critical habitat appears to be marginal in protected as critical habitat. and vegetation communities necessary its contribution to the conservation and Our Response: We are sensitive to the to support C. loncholepis that are recovery of the species. Much of the concerns of individuals regarding the contiguous with the known locations of area has been converted from grazing, effects of critical habitat designation on the taxon and are essential to the which is generally compatible with the private land or public lands under State conservation of the species. thistle, to intensive agriculture in the or local jurisdiction. We agree that Within the geographic area occupied form of vineyards. The thistle may not critical habitat should include only by Cirsium loncholepis, we designate be able to survive and recover under areas essential to the conservation of only areas currently known to be this change in land use. Cirsium loncholepis. Upon review of the essential to the conservation of the Our Response: No vineyards currently area encompassed by the Oceano Dunes species. Essential areas already have the occur within the Can˜ ada de las Flores State Vehicular Recreation Area features and habitat characteristics that Unit. Much of the area surrounding the (ODSVA), we have removed from the are necessary to sustain the species. We Can˜ ada de las Flores unit, specifically final designation the heavily used off- do not speculate about what areas might within and south of Los Alamos Valley, highway vehicle (OHV) riding area be found to be essential if better has undergone recent land use changes within the ODSVA because the area is information became available, or what in the form of vineyard development. not essential for the conservation of areas may become essential over time. If However, the majority of the property Cirsium loncholepis (see Summary of the information available at the time of within the Can˜ ada de las Flores unit Changes from the Proposed Rule designation does not show that an area remains under a grazing regime with a section). However, we have retained the provides essential life cycle needs of the small amount of agricultural row crops. remaining portion of the ODSVA in our species, then the area is not included in The majority of the property in this unit final designation because these areas are the critical habitat designation. Within is owned by Chevron, which is in the not disturbed and contain habitat the geographic area occupied by the process of closing, excavating, and essential for C. loncholepis. Unless a species, we do not designate areas that capping old well sites on the South Los Federal nexus (e.g., Federal funding, do not now have the primary Flores Ranch. A vineyard developer has Federal permit, or other Federal actions) constituent elements, as defined at 50 approached the Service and Santa exists, the critical habitat designation CFR 424.12(b), which provide essential Barbara County about vineyard poses no regulatory burden and should life cycle needs of the species. development on property within the not affect activities at the Oceano Dunes We agree that future conservation and southern portion of the Unit; less than State Vehicular Recreation Area. If a recovery of the species depends not 10 percent of the unit is proposed for Federal nexus is found to exist, we will only on the areas it currently occupies, vineyard conversion in the current work with the State (or other non- but also on providing the opportunity plans (Bridget Fahey, Service biologist, Federal entity) and appropriate Federal for it to shift in distribution over time, pers. comm. 2002). Vineyard agency to attempt to develop a project and to expand its current distribution. development on the property would that can be completed without We have addressed this by designating likely occur in upland areas, away from jeopardizing the continued existence of as critical habitat the areas that marsh and wetland habitat that support the C. loncholepis or adversely surround existing populations and Cirsium loncholepis and the federally modifying its critical habitat. contain the primary constituent endangered Santa Barbara Distinct We have analyzed the potential elements and are, therefore, essential to Population Segment (DPS) of the takings implications of designating the conservation of Cirsium loncholepis. California tiger salamander (Ambystoma critical habitat for Cirsium loncholepis. The number and location of standing californiense). Measures developed to This final rule will not take private,

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State, or other non-Federal property. values for Cirsium loncholepis and the be weighed against the expected cost Owners and users of non-Federal other two species for which critical impacts of the rulemaking. recreational areas that are included in habitat was concurrently proposed. Summary of Changes From the the designated critical habitat will Our Response: Some economists Proposed Rule continue to have an opportunity to recognize that in addition to a ‘‘use utilize private and public property in value’’ that society places on natural In preparation for development of our ways consistent with the conservation resources these goods may also exhibit final designation of critical habitat for of C. loncholepis. Activities that do not a ‘‘non-use value’’ by society. For Cirsium loncholepis, we reviewed have a Federal nexus are not restricted example, while many people may elect comments received on the proposed by the designation of critical habitat. to visit a public park and ‘‘use’’ it for a designation of critical habitat. In (5) Comment: California Department variety of recreational purposes, the addition to minor clarifications and of Transportation (DOT) requested an presence of this park may provide a incorporation of additional information exclusion of areas within the DOT variety of benefits to additional on the species’ biology and taxonomy, operating Right of Way (ROW) in members of society even though their we made four changes to our proposed several, unspecified units of critical enjoyment may not be directly designation, as follows: habitat for Cirsium loncholepis, where observable. Certain individuals may also (1) We modified two of the three they overlap with the transportation derive benefits from the park because of primary constituent elements from the system of California. The DOT requested the protection it offers to certain natural proposed designation by including an exclusion to reduce the need for resources including a diverse ecosystem additional habitats, excluding two plant habitat effects determinations for the that harbors endangered and threatened communities, and refining the plant taxa where routine disturbance occurs species. While these members of society species associated with Cirsium as a result of regular maintenance and may value the park merely for its loncholepis habitats. We did not include operational improvements. existence, their behavior is not directly seeps in our proposed list of C. Our Response: In the region covered observable and thus economists have loncholepis habitats for primary by this critical habitat designation, State developed certain tools, including CVM, constituent element one. Because and Federal roads appear to be within for measuring these values. hillside seeps provide habitat for the the Pismo-Orcutt unit. To clarify, we are CVM is an approach used by species in the Can˜ ada de las Flores not including roads that border the economists to directly elicit non-use critical habitat unit, we have added critical habitat units in our designation. values from individuals through the use seeps to the list of habitats. Intermittent The areas adjacent to the State roads of carefully designed survey streams also provide habitat for the that extend within the Pismo-Orcutt instruments. A CVM study will provide species, specifically where sub-surface unit contain habitat essential to the respondents with a framework wherein water is close to the surface or exposed conservation of Cirsium loncholepis as they are asked to value the resource along such drainages. For this reason, defined by the primary constituent given the parameters of the framework. we have also included intermittent elements. Therefore, we cannot justify For CVM to work properly, and provide streams. In primary constituent element excluding these particular areas from meaningful information on non-use two of the proposed designation, we the critical habitat unit. values, considerable resources must be included coastal dune and coastal scrub Due to mapping and time constraints, expended to adequately design and as being essential plant communities. we did not map critical habitat in administer this tool. We have not However, coastal dune and coastal scrub sufficient detail to exclude all road employed CVM studies to capture the plant communities do not provide the surfaces, although these would not non-use values certain individuals may moist soils considered necessary for contain the primary constituent place on critical habitat designation. habitats occupied by C. loncholepis, and elements essential for the conservation In conducting our analyses for the La therefore we have removed these of this taxon. Therefore, we do not view Graciosa thistle, we reviewed economic communities from the final list. Coastal road surfaces within the units as critical literature to determine whether or not dune ecosystems contain lakes and habitat for Cirsium loncholepis. Federal there are any existing studies that can other wetlands suitable for C. activities limited to roads and other provide information that would allow loncholepis, and these wetland habitats paved or graveled areas would not us to better describe and accurately are not dominated by plant species trigger a section 7 consultation unless quantify such benefits associated with associated with coastal dune and coastal they affect the species or one or more of the survival and recovery of the La scrub plant communities. In primary the primary constituent elements in Graciosa thistle and its habitat. constituent element two, we kept the adjacent critical habitat. However, even when such studies are plant species typically associated with Designation of critical habitat in areas identified, they usually do not allow for wetland habitats and removed plants occupied by Cirsium loncholepis is not the separation of the benefits of listing that are not obligate wetland species likely to result in a regulatory burden (including the Act’s take provisions) including Toxicodendron diversilobum substantially above that already in place from the benefits of critical habitat (poison oak), Distichlis spicata (salt due to the presence of the listed species. designation. grass), and Baccharis pilularis (coyote To streamline the regulatory process, While we are often unable to quantify brush). the DOT may request section 7 benefits that may be associated with the (2) We modified the boundaries of the consultation at a programmatic level for designation, our analyses do discuss proposed units to be consistent with ongoing activities that would result in potential benefits in a qualitative other recent critical habitat adverse effects to the taxon or its critical manner. This discussion is not intended designations. The boundaries are now habitat. to provide a complete analysis of the defined by points that lie on a 100- benefits that could result from section 7 meter-by-100-meter grid in the Issue 2: Economic Issues of the Act in general or critical habitat Universal Transverse Mercator (UTM) (6) Comment: We received one designation in particular. In short, we coordinate system. comment recommending we use the believe that we are currently best able (3) When making adjustments to the contingent valuation method (CVM) to to express the benefits of critical habitat Pismo-Orcutt unit, we made slight determine the hypothetical non-use designation in biological terms that can modifications to exclude developed

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areas that were missed during listing under the Act is no longer National security, of specifying any assessment of the 2000 aerial photos. necessary. particular area as critical habitat. We Developed areas are generally not Critical habitat receives protection may exclude areas from critical habitat considered essential habitats for Cirsium under section 7 of the Act through the designation when the benefits of loncholepis because of the lack of prohibition against destruction or exclusion outweigh the benefits of primary constituent elements in these adverse modification of critical habitat including the areas within critical areas. with regard to actions authorized, habitat, provided the exclusion will not (4) We excluded the heavily used off- funded, or carried out by a Federal result in extinction of the species. highway vehicle (OHV) riding area, agency. Section 7 of the Act also Our Policy on Information Standards which is a portion of the Oceano Dunes requires conferences on Federal actions Under the Endangered Species Act, State Vehicular Recreation Area, that are likely to result in the published in the Federal Register on because the area is not essential for the destruction or adverse modification of July 1, 1994 (59 FR 34271), provides conservation of Cirsium loncholepis. proposed critical habitat. Aside from the criteria, establishes procedures, and OHV disturbance in the riding area has added protection that may be provided provides guidance to ensure that our inhibited the development of a natural under section 7, the Act does not decisions represent the best scientific dune structure that includes the provide other forms of protection to and commercial data available. This formation of wetlands which could lands designated as critical habitat. policy requires our biologists, to the support C. loncholepis. The riding area Because consultation under section 7 of extent consistent with the Act and with consists mostly of shifting, open sand the Act does not apply to activities on the use of the best scientific and that is unsuitable habitat for C. private or other non-Federal lands that commercial data available, to use loncholepis. A small number of remnant do not involve a Federal nexus, critical primary and original sources of wetland habitats exist in the riding area habitat designation would not afford information as the basis for that might support the species, but these any additional regulatory protections recommendations to designate critical are fenced off from OHV disturbance under the Act against such activities. habitat. When determining which areas and too few to be essential to the In order to be included in a critical are critical habitat, a primary source of conservation of the species. The highly habitat designation, the habitat must information should be the listing disturbed riding area that we are first be ‘‘essential to the conservation of package for the species. Additional excluding is only a small part of the the species.’’ Critical habitat information may be obtained from a much larger Guadalupe Dune complex. designations identify, to the extent recovery plan, articles in peer-reviewed The majority of the known extant known, and using the best scientific and journals, conservation plans developed populations of C. loncholepis are commercial data available, habitat areas by States and counties, scientific status restricted to undisturbed wetlands of that are essential to the conservation of surveys and studies, biological the Guadalupe Dune complex and the the species. Section 3(5)(C) of the Act assessments, or other unpublished Santa Maria River mouth, and we have states that not all areas that can be materials. therefore retained the vast majority of occupied by a species should be Section 4 of the Act requires that we the dune complex and a large part of the designated as critical habitat except in designate critical habitat based on what river in the Pismo-Orcutt unit. those circumstances determined by the we know at the time of designation. As a result of using the 100-meter-by- Secretary. Our regulations (50 CFR Habitat is often dynamic, and species 100-meter grid method for defining the 424.12(e)) also state that, ‘‘The Secretary may move from one area to another over boundaries and the removal of shall designate as critical habitat areas time. Furthermore, we recognize that developed areas missed in the original outside the geographic area presently designation of critical habitat may not proposed delineation, the Pismo-Orcutt occupied by the species only when a include all of the habitat areas that may unit decreased in size by 1,468 ac (595 designation limited to its present range eventually be determined necessary for ha) and the Can˜ ada de las Flores unit would be inadequate to ensure the the recovery of the species. For these decreased in size by only 137 ac (56 ha). conservation of the species.’’ reasons, it is important to understand With the removal of the OHV riding To be included in a critical habitat that critical habitat designations do not area, the Pismo-Orcutt unit decreased in designation, the Service must also find signal that habitat outside the size by an additional 1,621 ac (656 ha). that habitat may require special designation is unimportant or may not management considerations or be required for recovery. Areas outside Critical Habitat protections. As discussed in more detail the critical habitat designation will Section 3 of the Act defines critical below, with respect to the individual continue to be subject to conservation habitat as—(i) the specific areas within units, the Service finds that the two actions that may be implemented under the geographic area occupied by a units designated as critical habitat for section 7(a)(1) of the Act and to the species, at the time it is listed in the C. loncholepis may require special regulatory protections afforded by the accordance with the Act, on which are management considerations or section 7(a)(2) jeopardy standard and found those physical or biological protections due to threats to the species the applicable prohibitions of section 9 features (I) essential to the conservation and/or its habitat. Such special of the Act, as determined on the basis of the species and (II) which may management considerations or of the best available information at the require special management protections may include management of time of the action. Federally funded or considerations or protection; and (ii) off-highway vehicle activity, irrigation assisted projects affecting listed species specific areas outside the geographical practices, groundwater pumping, outside their designated critical habitat area occupied by the species at the time invasive, non-native species, and areas may thus result in jeopardy it is listed upon a determination that grazing, as well as protecting the findings in some cases. Similarly, such areas are essential for the composition of native plant and animal critical habitat designations made on the conservation of the species. communities within critical habitat basis of the best available information at ‘‘Conservation’’ means the use of all units. Section 4(b)(2) of the Act requires the time of designation will not control methods and procedures that are that we take into consideration the the direction and substance of future necessary to bring an endangered or a economic impact, and any other recovery plans, habitat conservation threatened species to the point at which relevant impact, including impacts to plans, or other species conservation

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planning efforts if new information cell size of 100-meters by 100-meters. including the pattern of prevailing available to these planning efforts calls To accomplish this modification, the coastal winds, support natural dune for a different outcome. points defining the boundaries of dynamics in coastal areas, or occasional proposed critical habitat were moved to floodplain depositional events in inland Methods an adjacent point lying on the UTM grid areas. As required by the Act and of 100-meter cells. Defining critical Based on our knowledge to date, the regulations (section 4(b)(2) and 50 CFR habitat boundaries to be coincident with primary constituent elements of critical 424.12), we used the best scientific points on a UTM grid is consistent with habitat for Cirsium loncholepis consist information available to determine areas current practice and is intended to of: that contain the physical and biological simplify interpretation of the (1) Moist, sandy soils associated with features that are essential for the coordinates while diminishing the dune swales, margins of dune lakes and conservation of Cirsium loncholepis. number of coordinates necessary to marshes, seeps, intermittent streams, This included information from the define a boundary. We did not conform and river margins from the Guadalupe California Natural Diversity Data Base the boundary along OHV riding area to Dune complex along the coast and (CNDDB 2001), soil survey maps (U.S. the UTM grid of 100-meter cells because inland to Can˜ ada de las Flores; Soil Conservation Service 1972), digital the resulting boundary would greatly (2) Plant communities that support versions of the U.S. Geological Survey deviate from the boundary marked for associated wetland species, including: 7.5′ quadrangles, aerial photography, visitors to the Recreation Area; we Juncus spp. (rush), Scirpus spp. (tule), recent biological surveys and reports, believe that a boundary coincident with and Salix spp. (willow); and additional information provided by the OHV riding area is easily (3) Hydrologic processes, particularly interested parties, and discussions with understood by Recreation Area visitors the maintenance of a stable groundwater representatives of California Department and simplifies administration for State table supporting the soil moisture of Fish and Game (CDFG), the Santa Parks. regime that appears to be favored by Barbara County Planning Department, Cirsium loncholepis. Primary Constituent Elements and other botanical experts. We also Special Management Considerations or conducted site visits at several locations In accordance with section 3(5)(A)(i) Protections managed by local, State, or Federal of the Act and regulations at 50 CFR agencies, including Guadalupe-Nipomo 424.12, in determining which areas to When designating critical habitat, we Dunes National Wildlife Refuge, Oceano propose as critical habitat, we consider assess whether the areas determined to Dunes State Vehicle Recreation Area, those physical and biological features be essential for conservation may and Pismo Dunes State Preserve. We (primary constituent elements) that are require special management also visited the portion of Guadalupe essential to the conservation of the considerations or protections. The Dunes owned by the Unocal species and that may require special Pismo-Orcutt unit may require special Corporation. management considerations or management considerations or We delineated the proposed critical protection. These include, but are not protections due to the threats to the habitat units for Cirsium loncholepis by limited to: Space for individual and species and its habitat posed by erosion creating data layers in a geographic population growth, and for normal or compaction of soils that could information system (GIS) format of the behavior; food, water, air, light, threaten wetlands, coastal dunes and areas of known occurrences of the taxon minerals, or other nutritional or swales; changes in surface or subsurface using the information sources described physiological requirements; cover or flows upon which C. loncholepis above and aerial photography available shelter; sites for breeding, reproduction, depends that may reduce or remove the through TerraServer (http:// or rearing of offspring; sites for essential hydrological regime that terraserver.homeadvisor.msn.com). germination or seed dispersal; and supports the species; invasions of non- Where possible, we defined the habitats that are protected from native plants that may take over habitat boundaries of proposed critical habitat disturbance or are representative of the for the species; habitat fragmentation to conform to roads, known landmarks, historic geographical and ecological that detrimentally affects plant- and topographic features. To create the distributions of a species. pollinator interactions, leading to a legal descriptions of the boundaries, we All areas designated as critical habitat decline in species reproduction and used the UTM coordinates that defined for Cirsium loncholepis are within the increasing susceptibility to non-native the proposed boundary. species’ historic range and contain one plant invasion; and excessive grazing For the final rule we made several or more of the physical or biological that can lead to changes in essential modifications to the boundaries of features (primary constituent elements) habitat conditions (e.g., increases in soil proposed critical habitat. We overlaid identified as essential for the temperature resulting in loss of the boundaries of proposed critical conservation of each species. Much of moisture, decreases in plant cover, and habitat on aerial imagery from April what is known about the specific increases in non-native species). 2000 (AirPhoto USA), and an effort was physical and biological requirements of Currently, grazing, agriculture made to exclude developed areas. We C. loncholepis is described in the conversion, agricultural practices, excluded from critical habitat the off- Proposed Designation of Critical Habitat competition from non-native plant highway vehicle (OHV) riding area in for C. loncholepis. species, off-road vehicle traffic, and oil the Oceano Dunes State Vehicular The designated critical habitat is and gas decommissioning activities are Recreation Area (Recreation Area). We designed to provide sufficient habitat to ongoing in the Pismo-Orcutt unit. The used GIS data from Thomas Reid & maintain self-sustaining populations of Canada de las Flores unit may require Associates, a consultant of the Cirsium loncholepis throughout the special management considerations or Recreation Area, who approximated the species’ range, and provide those habitat protections due to the threats to the perimeter of the OHV riding area. With components essential for the species and its habitat posed by erosion the exception of the boundary excluding conservation of the species. Habitat or compaction of soils that could the OHV riding area just described, the components that are essential for C. threaten wetlands, coastal dunes and boundaries were modified to conform to loncholepis are found in wetland swales; changes in surface or subsurface a UTM coordinate system grid with a communities where physical processes, flows upon which C. loncholepis

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depends that may reduce or remove the on the scale at which groups of owned by the County of Santa Barbara. essential hydrological regime that individuals are recorded (e.g., many Private lands include areas that are supports the species; invasions of non- small groups versus one large group); being managed for conservation by native plants that may take over habitat and (2) depending on the climate and private landowners, as well as those that for the species; habitat fragmentation other annual variations in habitat are being managed for agriculture, that detrimentally affects plant- conditions, the extent of the above- ranchlands, or oil field pollinator interactions, leading to a ground distributions may either shrink decommissioning. Each of the critical decline in species reproduction and and temporarily disappear, or, as a habitat units is considered to be increasing susceptibility to non-native residual soil seedbank is expressed, occupied by either seeds as part of the plant invasion; and excessive grazing enlarge and cover a more extensive area. seedbank or standing plants, and to that can lead to changes in essential Therefore, the inclusion of currently contain habitat that include the specific habitat conditions (e.g., increases in soil unoccupied habitat interspersed with soils, hydrology, or plant communities temperature resulting in loss of patches of occupied habitat in the that are essential for this taxon. moisture, decreases in plant cover, and critical habitat units reflects the Critical habitat designated for Cirsium increases in non-native species). dynamic nature of the habitat and the loncholepis includes two units, both of Currently, grazing, agriculture life history characteristics of the taxon. which currently sustain the species. conversion, competition from non- We have also included a larger area of Protection of both units is essential for native plant species, and oil and gas currently unoccupied habitat in the the conservation of the species because decommissioning are ongoing in the Pismo-Orcutt unit, extending from the the geographic range that C. loncholepis Canada de las Flores Unit. known coastal locations of the species occupies has been reduced to so few inland to Orcutt. This habitat is sites that the species is in danger of Criteria Used To Identify Critical essential to the conservation of the extinction. Both units contain habitat Habitat species because (1) it provides components that are essential for the Throughout this designation, when connectivity between the known conservation of C. loncholepis. The selecting areas of critical habitat we locations on the coast and those habitats areas being designated as critical habitat made an effort to avoid developed areas, containing the primary constituent contain the appropriate marsh, dune such as housing developments, that are elements for C. loncholepis in the more wetland, and riparian habitat that unlikely to contribute to the interior portions of the unit including support C. loncholepis, including the conservation of Cirsium loncholepis. the type locality for the species (The sandy soils, the associated plant However, we did not map critical type locality is the geographic location communities, and a groundwater table habitat in sufficient detail to exclude all where the primary type was collected. that maintains wet soil conditions. We developed areas, or other lands unlikely The type specimen (also known as are designating approximately 41,089 ac to contain the primary constituent holotype) is the original specimen from (16,628 ha) of land as critical habitat for elements essential for the conservation which a description of a new species is C. loncholepis. Approximately 5 percent of C. loncholepis. Areas within the made.), (2) it contains the primary of this area consists of Federal lands, boundaries of the mapped units, such as constituent elements for the species and approximately 5 percent are State lands, buildings, roads, parking lots, railroads, (3) it provides potentially suitable less than 1 percent are county lands, airport runways and other paved areas, habitat for introductions needed for and approximately 89 percent are lawns, and other urban landscaped recovery of the species. private lands (Table 1). Both units areas will not contain any of the We considered the status of habitat maintain the ecological processes that primary constituent elements and thus conservation planning (HCP) efforts support the habitats containing the do not constitute critical habitat for the during the development of this rule. We primary constituent elements. Within species. Therefore, Federal actions may exclude HCPs from critical habitat the units, these habitats allow limited to these areas would not trigger designation if the benefits of excluding expansion of the existing populations by a section 7 consultation unless it is them would outweigh the benefits of maintaining connectivity through determined that such actions may affect including them. Currently, no HCPs pollinators and wind dispersal. the species and/or adjacent designated include Cirsium loncholepis as a A brief description of both critical critical habitat. covered species. habitat units is given below: During development of this rule, we considered the role of unoccupied Critical Habitat Designation Pismo-Orcutt Unit habitat in the conservation of Cirsium The critical habitat areas described The Pismo-Orcutt Unit consists of loncholepis. Due to the historic loss of below include one or more of the coastal dunes, swales, and wetlands the habitats that supported the taxon, primary constituent elements described extending from Grover City south to we believe that conservation and above and constitute our best Mussel Point, just north of Point Sal, recovery of this species depends not assessment at this time of the areas and then extending inland across the only on protecting it in the limited areas needed for the conservation of Cirsium Santa Maria Valley to the area of Orcutt. that it currently occupies, but also on loncholepis. Critical habitat includes This unit includes a portion of the providing the opportunity to increase its habitat throughout the species’ current Pismo Dunes State Preserve, non-OHV distribution by protecting currently range in the United States (Santa riding areas of Oceano Dunes State unoccupied habitat within its historic Barbara and San Luis Obispo Counties, Vehicular Recreation Area, the range. California). Lands designated as critical Guadalupe-Nipomo Dunes National We consider both units designated as habitat are under Federal, State, local, Wildlife Refuge, Rancho Guadalupe critical habitat for Cirsium loncholepis and private ownership. Federal lands Dunes County Park, and privately to be occupied by the species. include areas owned and managed by owned lands. In the vicinity of Orcutt, Determining the specific areas that this the Service. State lands include areas some of the private lands included in taxon occupies is difficult for several owned and managed by the California this unit have been designated as open reasons: (1) The methods for mapping Department of Parks and Recreation and space by Santa Barbara County (1998). the current distributions of C. the California Department of Fish and The coastal portion of this unit contains loncholepis can be variable, depending Game (CDFG). Local lands include parks almost all of the known populations of

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Cirsium loncholepis, including the River blow southeast across the lower seeps, at the head of Can˜ ada de las largest population known to exist Santa Maria River Valley in the Flores watershed, northwest of the town anywhere on privately owned lands, the direction of Orcutt and beyond to of Los Alamos. All of the lands in this Unocal parcel near the mouth of the Can˜ ada de las Flores. The prevailing unit are privately owned. The two Santa Maria River, as well as numerous winds cause seed dispersal, which known populations of Cirsium smaller populations that are scattered explains the elongated pattern in loncholepis in this unit encompass the along the coast north to Grover City. distribution of individual plants within easternmost distribution of the species; Maintaining all of these populations is known coastal populations. Wind consequently they occur under slightly essential for this species to survive dispersal is important for the different environmental conditions, through a variety of natural and human- maintenance and expansion of existing specifically at a higher elevation (200 ft induced environmental changes as well populations of this species. Intervening (61 m) elev.) and warmer climate than as stochastic events (e.g., floods). The habitat between the coastal populations the coastal populations. These are the more interior portions of this unit are and the more interior portions of the only known populations that represent primarily within the lower portion of Pismo-Orcutt unit is therefore important the more interior distribution of the the Santa Maria River Valley (below 80 to maintain connectivity through species. Preserving plants surviving in ft (24 m) in elevation) and have been pollinator activity and seed dispersal these slightly different environmental placed in agricultural production. mechanisms, and to provide suitable conditions (e.g., seasonal temperatures, However, fragments of numerous small habitat for introduction efforts needed type of wetland habitat, adjacent plant marshes, wetlands, and drainages can for recovery of the species. communities) may be important for the still be found interspersed with long-term survival and conservation of Can˜ ada de Las Flores Unit agricultural fields. The prevailing winds the species because they may contain from the stretch of coast between Pismo The Can˜ ada de Las Flores Unit genetic features different than those in Beach and the mouth of the Santa Maria consists of wetland habitat, in particular other parts of the range.

TABLE 1.—APPROXIMATE DESIGNATED CRITICAL HABITAT UNIT AREAS FOR Cirsium loncholepis IN ACRES (AC) (HECTARES (HA)) BY LAND OWNERSHIP 1

County and other Unit name State Private local jurisdictions Federal Total

Pismo-Orcutt ...... 1,946 ac ...... 33,954 ac ...... 29 ac ...... 2,333 ac ...... 38,262 ac (787 ha) ...... (13,741 ha) ...... (12 ha) ...... (944 ha) ...... (15,484 ha) Can˜ada de las Flores 0 ac ...... 2,827 ac ...... 0 ac ...... 0 ac ...... 2,827 ac (0 ha) ...... (1,144 ha) ...... (0 ha) ...... (0 ha) ...... (1,144 ha)

Total ...... 1,946 ac ...... 36,781 ac ...... 29 ac ...... 2,333 ac ...... 41,089 ac (787 ha) ...... (14,885 ha) ...... (12 ha) ...... (944 ha) ...... (16,628 ha) 1 Approximate hectares have been converted from acres (1 ha = 2.47 ac).

Effects of Critical Habitat Designation alteration that appreciably diminishes Federal agencies to confer with us on the value of critical habitat for both the any action that is likely to jeopardize Section 7 Consultation survival and recovery of a listed species. the continued existence of a species Section 7(a)(2) of the Act requires Such alterations include, but are not proposed for listing or result in Federal agencies, including the Service, limited to, alterations adversely destruction or adverse modification of to ensure that actions they fund, modifying any of those physical or proposed critical habitat. Conference authorize, or carry out are not likely to biological features that were the basis reports provide conservation jeopardize the continued existence of for determining the habitat to be recommendations to assist the action any threatened or endangered species or critical.’’ However, in a March 15, 2001, agency in eliminating conflicts that may result in the destruction or adverse decision of the United States Court of be caused by the proposed action. The modification of critical habitat Appeals for the Fifth Circuit (Sierra conservation recommendations in a designated for such a species. Club v. U.S. Fish and Wildlife Service, conference report are advisory. Destruction or adverse modification of et al., 245 F3d 434), the Court found our We may issue a formal conference critical habitat occurs when a Federal definition of destruction or adverse report, if requested by the Federal action action directly or indirectly alters modification to be invalid. In response agency. Formal conference reports critical habitat to the extent it to this decision, we are reviewing the include an opinion that is prepared appreciably diminishes the value of regulatory definition of adverse according to 50 CFR 402.14, as if the critical habitat for the conservation of modification in relation to the species was listed or critical habitat the species. Individuals, organizations, conservation of the species. designated. We may adopt the formal States, local governments, and other Section 7(a) of the Act requires conference report as the biological non-Federal entities are affected by the Federal agencies to evaluate their opinion when the species is listed or designation of critical habitat only if actions with respect to any species that critical habitat designated, if no their actions occur on Federal lands; is proposed or listed as endangered or substantial new information or changes require a Federal permit, license, or threatened and with respect to its in the action alter the content of the other authorization; or involve Federal critical habitat, if any is designated or opinion (see 50 CFR 402.10(d)). funding. proposed. Regulations implementing If a species is listed or critical habitat In our regulations at 50 CFR 402.02, this interagency cooperation provision is designated, section 7(a)(2) of the Act we define destruction or adverse of the Act are codified at 50 CFR part requires Federal agencies to ensure that modification as ‘‘a direct or indirect 402. Section 7(a)(4) of the Act requires activities they authorize, fund, or carry

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out are not likely to jeopardize the Both of the units we are designating designates critical habitat those continued existence of such a species or are occupied by either above-ground activities involving a Federal action that to destroy or adversely modify its plants or a seedbank of the taxon, and may adversely modify such habitat or critical habitat. If a Federal action may Federal agencies already consult with us that may be affected by such affect a listed species or its critical on activities in areas where the species designation. Activities that may destroy habitat, the responsible Federal agency may be present to ensure that their or adversely modify critical habitat (action agency) must enter into actions do not jeopardize the continued would be those that alter the primary consultation with us. Through this existence of the species. Each unit also constituent elements to the extent that consultation, the Federal action agency contains some areas that are considered the value of critical habitat for the would ensure that the permitted actions unoccupied. However, we believe, and conservation of Cirsium loncholepis is do not destroy or adversely modify the economic analysis discussed below appreciably reduced. We note that such critical habitat. illustrates, that the designation of activities may also jeopardize the If we issue a biological opinion critical habitat is not likely to result in continued existence of the species. concluding that a project is likely to a significant regulatory burden above Activities that, when carried out, result in the destruction or adverse that already in place due to the presence funded, or authorized by a Federal modification of critical habitat, we also of the listed species. Few additional agency, may directly or indirectly provide ‘‘reasonable and prudent consultations are likely to be conducted destroy or adversely modify critical alternatives’’ to the project, if any are due to the designation of critical habitat. habitat for Cirsium loncholepis include, identifiable. Reasonable and prudent Actions on which Federal agencies but are not limited to: alternatives are defined at 50 CFR consult with us include, but are not (1) Activities that alter habitat 402.02 as alternative actions identified limited to: hydrological regimes in ways that during consultation that can be (1) Development on private lands would appreciably alter or reduce the implemented in a manner consistent requiring permits from Federal agencies, quality or quantity of surface and with the intended purpose of the action, such as 404 permits from the U.S. Army subsurface water needed to maintain the coastal dune swale, seep, marsh, and that are consistent with the scope of the Corps of Engineers or permits from riparian habitat within the range of Federal agency’s legal authority and other Federal agencies such as Housing Cirsium loncholepis. Such activities jurisdiction, that are economically and and Urban Development; adverse to C. loncholepis could include, technologically feasible, and that the (2) Activities of the U.S. Fish and but are not limited to, water drawdown Director believes would avoid the Wildlife Service on its Refuge lands; or water diversions that lower the water likelihood of jeopardizing the continued (3) Watershed management activities table, agricultural activities that would existence of the listed species or sponsored by the Natural Resources affect the quality of water through resulting in the destruction or adverse Conservation Service; (4) Activities of the Federal Aviation contamination, off-highway vehicle modification of critical habitat. Authority on their lands or lands under activity that alters vegetation cover and Regulations at 50 CFR 402.16 require their jurisdiction; topography, road building and Federal agencies to reinitiate (5) The release or authorization of maintenance or modification that alters consultation on previously reviewed release of biological control agents by runoff patterns, oilfield development, actions in instances where critical the U.S. Department of Agriculture; oil contamination remediation habitat is subsequently designated and (6) Regulation of activities affecting activities, construction of pipelines and the Federal agency has retained point source pollution discharges into utility corridors, golf course and discretionary involvement or control waters of the United States by the residential development and certain over the action or such discretionary Environmental Protection Agency under recreational activities; and involvement or control is authorized by section 402 of the Clean Water Act; and (2) Activities that destroy the law. Consequently, some Federal (7) Construction of communication attendant native vegetation and make agencies may request reinitiation of sites licensed by the Federal Cirsium loncholepis habitats more consultation or conference with us on Communications Commission, and susceptible to invasion by non-native actions for which formal consultation authorization of Federal grants or loans. plant species including, but not limited previously has been completed if those Where federally listed wildlife species to activities such as livestock grazing, actions may affect designated critical occur on private lands proposed for grading, construction and maintenance habitat or adversely modify or destroy development and a habitat conservation of pipeline and utility corridors, off- proposed critical habitat. plan (HCP) is submitted by an applicant road vehicle traffic, and other Activities on Federal lands that may to secure a permit to take according to recreational activities. affect Cirsium loncholepis or its critical section 10(a)(1)(B) of the Act, our Several other wildlife species that are habitat will require section 7 issuance of such a permit would be listed under the Act occur in the same consultation. Activities on private or subject to the section 7 consultation general areas as Cirsium loncholepis. State lands requiring a permit from a process. In those situations where Western snowy plovers (Charadrius Federal agency, such as a permit from Cirsium loncholepis may occur or its alexandrinus nivosus), tidewater gobies the U.S. Army Corps of Engineers critical habitat is present within the area (Eucyclogobius newberryi), California (Corps) under section 404 of the Clean covered by an HCP that covers a wildlife least terns (Sterna antillarum browni), Water Act or any other activity requiring species, the consultation process would California red-legged frogs (Rana aurora Federal action (i.e., funding, include consideration of the potential draytonii), marsh sandwort (Arenaria authorization) will also continue to be effects on all listed species, including paludicola), Gambel’s watercress subject to the section 7 consultation plants, of granting the permit (Rorippa gambelii), and Nipomo lupine process. Federal actions not affecting C. authorizing take of threatened or (Lupinus nipomensis) occur within the loncholepis or its critical habitat, as well endangered wildlife species addressed coastal portions of the Pismo-Orcutt as actions on non-Federal lands that are by the HCP. unit designated as critical habitat for C. not federally funded or permitted, will Section 4(b)(8) of the Act requires us loncholepis; in addition, critical habitat not require section 7 consultations with to briefly describe and evaluate in any for Western snowy plover overlaps with respect to this taxon. proposed or final regulation that that designated for C. loncholepis.

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California tiger salamanders discussion of potential economic effects of the region. Given the total value of (Ambystoma californiense) (Santa and the values presented below assumes $1.09 billion in income (over 10 years) Barbara DPS) occur on the more inland the inclusion of these lands in the from farming, agricultural services, portion of the Pismo-Orcutt unit in the critical habitat designation. However, construction, and oil and gas extraction vicinity of Orcutt, as well as in the through section 4(b)(2), in our final activities in Santa Barbara County alone, vicinity of the Can˜ ada de las Flores unit. critical habitat rule, we excluded lands the annualized total cost of section 7 If you have questions regarding owned by VAFB from the areas implementation represents about 0.07 whether specific activities will likely designated as critical habitat for percent of the total value of affected constitute adverse modification of Eriodictyon capitatum, and Deinandra economic activities, as estimated in the critical habitat, contact the Field increscens ssp. villosa. In that rule, we economic analysis. Although we do not Supervisor, Ventura Fish and Wildlife determined that the benefits of find the economic costs to be Office (see ADDRESSES section). Requests excluding lands owned by VAFB significant, they were considered in for copies of the regulations on listed outweighed the benefits of inclusion, balancing the benefits of including and wildlife and inquiries about which finding resulted in the entire excluding areas from critical habitat. prohibitions and permits may be removal of three units and modification We did not receive any comments on addressed to the U.S. Fish and Wildlife of two units (67 FR 67968). Therefore, the draft economic analysis of the Service, Portland Regional Office, 911 because our economic analysis was proposed designation. Following the NE 11th Avenue, Portland, OR 97232– based on an analysis of effects from close of the comment period, the 4181 (503/231–6131, Fax 503/231– listing and designating critical habitat economic analysis was finalized. We 6243). for three species, not just C. loncholepis, made no revisions or additions to the Relationship to Habitat Conservation and included impacts of areas that were draft economic analysis. subsequently excluded from the final Plans A copy of the final economic analysis critical habitat rules, the values and a description of the exclusion Currently, no Habitat Conservation presented below and in the economic process with supporting documents are Plans include Cirsium loncholepis as a analysis are likely overestimates of the included in our administrative record covered species. potential economic effects resulting and may be obtained by contacting our Economic Analysis from this critical habitat rule for C. Ventura Fish and Wildlife Office (see loncholepis. ADDRESSES section). Section 4(b)(2)of the Act requires us The categories of potential costs to designate critical habitat on the basis considered in the analysis included the Required Determinations of the best scientific and commercial costs associated with: (1) Conducting Regulatory Planning and Review information available and to consider section 7 consultations due to the listing the economic and other relevant or the critical habitat, including In accordance with Executive Order impacts of designating a particular area reinitiated consultations and technical 12866, the Office of Management and as critical habitat. We may exclude areas assistance; (2) modifications to projects, Budget (OMB) has determined that this from critical habitat upon a activities, or land uses resulting from critical habitat designation is not a determination that the benefits of such the section 7 consultations; and (3) significant regulatory action. This rule exclusions outweigh the benefits of potential offsetting beneficial costs will not have an annual economic effect specifying such areas as critical habitat. connected to critical habitat including of $100 million or more or adversely We cannot exclude such areas from educational benefits. affect any economic sector, critical habitat when such exclusion Our economic analysis recognizes that productivity, competition, jobs, the will result in the extinction of the there may be costs from delays environment, or other units of species concerned. associated with reinitiating completed government. This designation will not Following the publication of the consultations after the critical habitat create inconsistencies with other proposed critical habitat designation, designation is made final. There may agencies’ actions or otherwise interfere we conducted an economic analysis to also be economic effects due to the with an action taken or planned by estimate the potential economic effect of reaction of the real estate market to another agency. It will not materially the designation. The draft analysis was critical habitat designation, as real estate affect entitlements, grants, user fees, made available for public review on values may be lowered due to a loan programs, or the rights and May 7, 2002 (67 FR 30641). We accepted perceived increase in the regulatory obligations of their recipients. Finally, comments on the draft analysis until burden. this designation will not raise novel June 6, 2002. Based on our analysis, we concluded legal or policy issues. Accordingly, Our proposed critical habitat rule that the designation of critical habitat OMB has not formally reviewed this included three species, Cirsium would not result in a significant final critical habitat designation. loncholepis, Eriodictyon capitatum, and economic impact, and estimated the Deinandra increscens ssp. villosa. potential economic effects over a 10- Regulatory Flexibility Act (5 U.S.C. 601 Therefore, our economic analysis year period would range from $3.1 to et seq.) evaluated the potential future effects $3.65 million for all three species. The Under the Regulatory Flexibility Act associated with the listing of all three of total estimated costs associated with (RFA) (as amended by the Small those species as endangered under the Cirsium loncholepis alone over a 10- Business Regulatory Enforcement Act, as well as any potential effect of the year period is estimated to range Fairness Act (SBREFA) of 1996), critical habitat designation above and between $641,000 and $802,300, or whenever an agency is required to beyond those regulatory and economic $64,100 and $80,200 annually. The total publish a notice of rulemaking for any impacts associated with listing. In consultation costs for C. loncholepis proposed or final rule, it must prepare addition, we analyzed costs incurred attributable exclusively to the critical and make available for public comment through consultations and modifications habitat provision of section 7 may range a regulatory flexibility analysis that of activities on lands under the Federal from $17,200 to $43,600 over 10 years. describes the effect of the rule on small jurisdiction of Vandenberg Air Force These costs are small when considered entities (i.e., small businesses, small Base (VAFB), and the following in the context of the economic activity organizations, and small government

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jurisdictions). However, no regulatory potentially affected, we also consider costs are likely to be lower than were flexibility analysis is required if the whether their activities have any reflected in the economic analysis. To head of an agency certifies the rule will Federal involvement. be conservative (i.e., more likely to not have a significant economic impact Designation of critical habitat only overstate impacts than understate them), on a substantial number of small affects activities conducted, funded, or we assumed in our economic analysis entities. The SBREFA amended the RFA permitted by Federal agencies. Some that a unique business entity would to require Federal agencies to provide a kinds of activities are unlikely to have undertake each of the projected certification statement. In this rule, we any Federal involvement and so will not consultations in a given year. Therefore, are certifying that the critical habitat be affected by critical habitat the number of businesses affected designation for Cirsium loncholepis will designation. In areas where the species annually is equal to the total annual not have a significant effect on a is present, Federal agencies already are number of consultations (both formal substantial number of small entities. required to consult with us under and informal). The following discussion explains the section 7 of the Act on activities they Based on the economic analysis factual basis for this certification. fund, permit, or implement that may which looked at the critical habitat for Small entities include small affect Cirsium loncholepis. Federal three species, we estimated that in each organizations, such as independent agencies also must consult with us if year there could be between one and nonprofit organizations; small their activities may affect critical two consultations for private governmental jurisdictions, including habitat. Designation of critical habitat, development projects. Assuming each school boards and city and town therefore, could result in an additional consultation involves a different governments that serve fewer than economic impact on small entities due business, approximately less than 1 50,000 residents; as well as small to the requirement to reinitiate percent of the total number of small businesses. Small businesses include consultation for ongoing Federal private development companies could manufacturing and mining concerns activities. Since C. loncholepis was be affected annually by the designation with fewer than 500 employees, listed in March 2000, there have only of critical habitat for these three species. wholesale trade entities with fewer than been two formal consultations involving Similarly again in analyzing critical 100 employees, retail and service the species. Both consultations were habitat for the three species, we businesses with less than $5 million in conducted with the Army Corps of estimated that in each year there could annual sales, general and heavy Engineers on restoration activities being be approximately three consultations for construction businesses with less than undertaken by one entity, Unocal, to oil and gas production activities. $27.5 million in annual business, clean up and restore beach habitat Assuming each consultation involves a special trade contractors doing less than contaminated by oil production different business, approximately 3 to 4 $11.5 million in annual business, and activities. In these consultations, percent of the total number of small gas agricultural businesses with annual restoration of C. loncholepis habitat was and oil companies could be affected sales less than $750,000. To determine proposed as part of the project because annually by the designation of critical if potential economic impacts to these Unocal was under court order to habitat for these three species. small entities are significant, we remediate contamination by the We also estimated that in each year consider the types of activities that Environmental Protection Agency. Since there could be approximately less than might trigger regulatory impacts under there have been only two consultations one consultation for agriculture this rule, as well as the types of project and both involved the same agency and (vineyard) activities. Assuming each modifications that may result. In entity, the requirement to reinitiate consultation involves a different general, the term ‘‘significant economic consultations for ongoing projects will business, approximately less than 1 impact’’ is meant to apply to a typical not affect a substantial number of small percent of the total number of small small business firm’s business entities. agriculture companies could be affected operations. Our economic analysis found that annually by the designation of critical To determine if the rule could private development, oil and gas habitat for Cirsium loncholepis. significantly affect a substantial number production (oil and gas Therefore, the economic analysis of small entities, we consider the decommissioning in the Cirsium concluded that the designation of number of small entities affected within loncholepis units), and agriculture critical habitat for C. loncholepis will particular types of economic activities (particularly, vineyard conversion) are not result in a significant economic (e.g., housing development, grazing, oil the primary activities anticipated to take impact on a substantial number of small and gas production, timber harvesting). place within the area designated as entities. This conclusion is supported We apply the ‘‘substantial number’’ test critical habitat for Cirsium loncholepis, by the low number of consultations on individually to each industry to Eriodictyon capitatum, and Deinandra C. loncholepis that have occurred since determine if certification is appropriate. increscens ssp. villosa. There are it was listed. However, the SBREFA does not approximately 114 development and In general, two different mechanisms explicitly define ‘‘substantial number’’ real estate, 73 oil and gas, and 93 in section 7 consultations could lead to or ‘‘significant economic impact.’’ agriculture small companies within the additional regulatory requirements for Consequently, to assess whether a area designated as critical habitat for the the approximately four small ‘‘substantial number’’ of small entities is three species. Because this final rule businesses, on average, that may be affected by this designation, this does not include the critical habitat required to consult with us each year analysis considers the relative number designation for the Eriodictyon regarding their project’s impact on of small entities likely to be impacted in capitatum and Deinandra increscens Cirsium loncholepis and its habitat. an area. In some circumstances, ssp. villosa and also differs from the First, if we conclude, in a biological especially with critical habitat proposed rule upon which the economic opinion, that a proposed action is likely designations of limited extent, we may analysis was based through the to jeopardize the continued existence of aggregate across all industries and exclusion of proposed units for those a species or destroy or adversely modify consider whether the total number of species located on Vandenberg Air its critical habitat, we can offer small entities affected is substantial. In Force Base, the impacts of this rule on ‘‘reasonable and prudent alternatives.’’ estimating the number of small entities small businesses and total economic Reasonable and prudent alternatives are

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alternative actions that can be the needs of the species and the threats would only be affected by this implemented in a manner consistent it faces, as described in the final listing designation if their actions were being with the scope of the Federal agency’s rule and this critical habitat designation. funded, permitted, or carried out by a legal authority and jurisdiction, that are It is likely that a developer or other federal agency. In that circumstance, the economically and technologically project proponent could modify a federal agency would need to assure the feasible, and that would avoid project or take measures to protect action it was funding, permitting, or jeopardizing the continued existence of Cirsium loncholepis. Based on the types carrying out would not adversely listed species or adversely modifying of modifications and measures that have modify critical habitat. For all actions critical habitat. A Federal agency and an been implemented in the past for plant without federal involvement, this applicant may elect to implement a species, a project proponent may take designation would not have any affect reasonable and prudent alternative such steps as installing fencing or re- on such actions. associated with a biological opinion that aligning the project to avoid sensitive (b) This rule will not produce a has found jeopardy or adverse areas. It should be noted that a Federal mandate of $100 million or modification of critical habitat. An developer likely would already be greater in any year, that is, it is not a agency or applicant could alternatively required to undertake such measures ‘‘significant regulatory action’’ under choose to seek an exemption from the due to regulations in the California the Unfunded Mandates Reform Act. requirements of the Act or proceed Environmental Quality Act. These The designation of critical habitat without implementing the reasonable measures are not likely to result in a imposes no obligations on State or local and prudent alternative. However, significant economic impact to project governments. proponents. unless an exemption were obtained, the Executive Order 13211 Federal agency or applicant would be at In summary, we have considered risk of violating section 7(a)(2) of the whether this rule would result in a On May 18, 2001, the President issued Act if it chose to proceed without significant economic effect on a an Executive Order 13211 on implementing the reasonable and substantial number of small entities. We regulations that significantly affect prudent alternatives. Second, pursuant have determined, for the above reasons, energy supply, distribution, and use. to section 7(b)(4), if we find that a that it will not affect a substantial Executive Order 13211 requires agencies proposed action adversely affects the number of small entities. Furthermore, to prepare Statements of Energy Effects species but is not likely to jeopardize we believe that the potential compliance when undertaking certain actions. This the continued existence of a listed costs for the number of small entities rule is not expected to significantly animal or plant species or adversely that may be affected by this rule will not affect energy supplies, distribution, or modify its critical habitat, we may be significant. Therefore, we are use. In our economic analysis, we did identify reasonable and prudent certifying that the designation of critical not identify energy production or measures designed to minimize the habitat for Cirsium loncholepis will not distribution as being affected by this amount or extent of take and require the have a significant economic impact on designation, and we received no Federal agency or applicant to a substantial number of small entities. A comments indicating that the proposed implement such measures through non- regulatory flexibility analysis is not designation could significantly affect discretionary terms and conditions. We required. energy supplies, distribution, or use. Oil may also identify discretionary and gas facilities in the designated units Small Business Regulatory Enforcement of this final rule are decommissioned or conservation recommendations Fairness Act (5 U.S.C. 804(2)) designed to minimize or avoid the in the process of decommissioning. Under the Small Business Regulatory adverse effects of a proposed action on Therefore, this action is not a significant Enforcement Fairness Act (5 U.S.C. 801 listed species or critical habitat, help energy action and no Statement of et seq.), this rule is not a major rule. Our implement recovery plans, or to develop Energy Effects is required. detailed assessment of the economic information that could contribute to the effects of this designation is described Takings recovery of the species. in the economic analysis. Based on the In accordance with Executive Order Based on our experience with effects identified in the economic 12630 (‘‘Government Actions and consultations pursuant to section 7 of analysis, we believe that this rule will Interference with Constitutionally the Act for all listed species, virtually not have an effect on the economy of Protected Private Property Rights’’), we all projects—including those that, in $100 million or more, will not cause a have analyzed the potential takings their initial proposed form, would result major increase in costs or prices for implications of designating critical in jeopardy or adverse modification consumers, and will not have significant habitat for Cirsium loncholepis in a determinations in section 7 adverse effects on competition, takings implication assessment. The consultations—can be implemented employment, investment, productivity, takings implications assessment successfully with, at most, the adoption innovation, or the ability of U.S.-based concludes that this final rule does not of reasonable and prudent alternatives. enterprises to compete with foreign- pose significant takings implications. These measures, by definition, must be based enterprises. Refer to the final Federalism economically feasible and within the economic analysis for a discussion of scope of authority of the Federal agency the effects of this determination. In accordance with Executive Order involved in the consultation. As we 13132, the rule does not have significant have a very limited consultation history Unfunded Mandates Reform Act (2 Federalism effects. A Federalism for Cirsium loncholepis with no U.S.C. 1501 et seq.) assessment is not required. As discussed consultations that resulted in a jeopardy In accordance with the Unfunded above, the designation of critical habitat determination and so no identified Mandates Reform Act (2 U.S.C. 1501 et in areas currently occupied by Cirsium reasonable and prudent alternatives, we seq.): loncholepis would have little can only describe the general kinds of (a) This rule will not ‘‘significantly or incremental impact on State and local actions that may be identified in future uniquely’’ affect small governments. A governments and their activities. The reasonable and prudent alternatives. Small Government Agency Plan is not designations may have some benefit to These are based on our understanding of required. City and county governments these governments in that the areas

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essential to the conservation of these to, a collection of information unless it References Cited species are more clearly defined, and displays a valid OMB Control Number. A complete list of all references cited the primary constituent elements of the National Environmental Policy Act herein, as well as others, is available habitat necessary to the survival of the upon request from the Ventura Fish and species are identified. While making We have determined that an Wildlife Office (see ADDRESSES section). this definition and identification does Environmental Assessment and/or an not alter where and what Federally Environmental Impact Statement as Author sponsored activities may occur, it may defined by the National Environmental The authors of this final rule are assist these local governments in long Policy Act of 1969 need not be prepared Diane Gunderson, Mary Root, and range planning, rather than waiting for in connection with regulations adopted Connie Rutherford, Ventura Fish and case-by-case section 7 consultation to pursuant to section 4(a) of the Wildlife Office (See ADDRESSES section). occur. Endangered Species Act, as amended. A List of Subjects in 50 CFR Part 17 Civil Justice Reform notice outlining our reason for this determination was published in the Endangered and threatened species, In accordance with Executive Order Federal Register on October 25, 1983 Exports, Imports, Reporting and 12988, the Department of the Interior’s (48 FR 49244). This determination does recordkeeping requirements, Office of the Solicitor has determined not constitute a major federal action Transportation. that this rule does not unduly burden significantly affecting the quality of the the judicial system and meets the Regulation Promulgation human environment. requirements of sections 3(a) and 3(b)(2) I Accordingly, we amend part 17, of the Order. We have designated Government-to-Government subchapter B of chapter I, title 50 of the critical habitat in accordance with the Relationship With Tribes Code of Federal Regulations, as set forth provisions of the Endangered Species below: Act, as amended. The rule uses standard In accordance with the President’s property descriptions and identifies the memorandum of April 29, 1994, PART 17—[AMENDED] primary constituent elements within the ‘‘Government-to-Government Relations designated areas to assist the public in With Native American Tribal I 1. The authority citation for part 17 understanding the habitat needs of Governments’’ (59 FR 22951), Executive continues to read as follows: Cirsium loncholepis. Order 13175, and the Department of the Authority: 16 U.S.C. 1361–1407; 16 U.S.C. Interior’s manual at 512 DM 2, we 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– Paperwork Reduction Act of 1995 (44 readily acknowledge our responsibility 625, 100 Stat. 3500, unless otherwise noted. U.S.C. 3501 et seq. to communicate meaningfully with I 2. In § 17.12(h) revise the entry for This rule does not contain any recognized Federal Tribes on a Cirsium loncholepis under information collection requirements for Government-to-Government basis. The ‘‘FLOWERING PLANTS’’ to read as which OMB approval under the designated critical habitat for Cirsium follows: Paperwork Reduction Act is required. loncholepis does not contain any Tribal An agency may not conduct or sponsor, lands or lands that we have identified § 17.12 Endangered and threatened plants. and a person is not required to respond as impacting Tribal trust resources. (h) * * *

Species Historic range Family Status When listed Critical Special Scientific name Common name habitat rules

FLOWERING PLANTS

******* Cirsium loncholepis La Graciosa thistle U.S.A. (CA) ...... Asteraceae-sun- E 691 17.96(a) ...... NA flower.

*******

I 3. In § 17.96, amend paragraph (a) by (i) Moist sandy soils associated with buildings, hard-packed roads (e.g., adding an entry for Cirsium loncholepis dune swales, margins of dune lakes and asphalt, pavement), aqueducts, under Family Asteraceae to read as marshes, seeps, intermittent streams, railroads, airport runways and follows: and river margins from the Guadalupe buildings, other paved areas, lawns, and Dune complex along the coast and other urban landscaped areas not § 17.96 Critical habitat—plants. inland to Can˜ ada de las Flores; containing all of the primary constituent (a) * * * (ii) Plant communities that support elements. Family—Asteraceae: Cirsium associated wetland species, including: (4) Critical Habitat Map Units. Data loncholepis (La Graciosa thistle) Juncus spp. (rush), Scirpus spp. (tule), layers defining map units were mapped and Salix spp. (willow); and using Universal Transverse Mercator (1) Critical habitat units are depicted (iii) Hydrologic processes, particularly (UTM) coordinates. for San Luis Obispo and Santa Barbara the maintenance of a stable groundwater (5) Cirsium loncholepis. Pismo-Orcutt Counties, California, on the maps below. table supporting the soil moisture Unit; San Luis Obispo and Santa (2) The primary constituent elements regime that appears to be favored by Barbara Counties, California. of critical habitat for Cirsium Cirsium loncholepis. (i) From USGS 1:24,000 scale loncholepis are those habitat (3) Critical habitat does not include quadrangle maps Pismo Beach and components that provide: existing features and structures, such as Oceano. Land bounded by the following

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UTM 10 NAD 1927 coordinates (E, N): 3861000; 732800, 3861000; 733000, 727300, 3867100; 727100, 3867200; 715600, 3889000; 716100, 3889000; 3860800; 733200, 3860800; 733200, 727000, 3866900; 726400, 3867300. 716100, 3888800; 716200, 3888500; 3860600; 733500, 3860400; 733600, (vi) Excluding land bounded by: 716600, 3887600; 716500, 3887600; 3860300; 734100, 3860300; 734200, 728400, 3870600; 728400, 3870200; 716600, 3887300; 716400, 3887300; 3860200; 733900, 3860100; 733600, 727700, 3870200; 727500, 3869700; 716400, 3887400; 716300, 3887400; 3860100; 733600, 3859900; 733400, 729200, 3869700; 729200, 3869500; 716300, 3887300; thence southwest to 3859800; 733300, 3859700; 733200, 729400, 3869500; 729400, 3870300; Oceano Dunes State Vehicular 3859500; 733200, 3859200; 733000, 728900, 3870300; 728500, 3870600; Recreation Area ‘‘Street Legal’’ riding 3859200; 733000, 3859600; 732800, 728400, 3870600. area boundary at y-coordinate 3887230; 3860400; 732600, 3860700; 731500, (vii) Excluding land bounded by: thence north along the ‘‘Street Legal’’ 3861500; 730700, 3861800; 729800, 722100, 3872900; 721800, 3872900; riding area boundary to y-coordinate 3862100; 728800, 3862500; 728300, 721600, 3872700; 721400, 3872200; 3888735; thence northwest, returning to 3862900; 726900, 3864000; 726400, 721300, 3871700; 721100, 3871600; 715600, 3889000. 3864300; 726100, 3864600; 725100, 721000, 3871400; 720800, 3871300; (ii) From USGS 1:24,000 scale 3865000; 723900, 3866000; 722700, 720600, 3871400; 720200, 3871400; quadrangle maps Pismo Beach, Oceano, 3867000; 722800, 3867300; 722700, 720000, 3871300; 720000, 3870800; Point Sal, Guadalupe, Santa Maria, and 3867600; 722600, 3867800; 722400, 721100, 3870800; 721100, 3870700; Orcutt. Lands bounded by following 3867900; 722300, 3868300; 722100, 721400, 3870700; 721400, 3870800; UTM Zone 10, NAD 1927 coordinates 3868300; 722000, 3868200; 721400, 722200, 3870800; 722200, 3871900; (E, N): 716700, 3886500; 717100, 3868400; 721000, 3868400; 720300, 723000, 3871900; 723000, 3872000; 3886400; 717300, 3886300; 717600, 3868700; 719700, 3868800; 719500, 722300, 3872300; 722300, 3872600; 3886100; 718100, 3886000; 719100, 3868900; 719400, 3869100; 719200, 722100, 3872900. 3885200; 719400, 3884900; 719600, 3869300; 718600, 3869600; 717900, 3884600; 719600, 3884000; 719300, 3869700; 717700, 3869800; 717500, (6) Cirsium loncholepis. Can˜ ada de 3883700; 719200, 3883200; 719100, 3869800; 717100, 3869700; 716600, Las Flores Unit; San Luis Obispo and 3883000; 719200, 3882300; 719400, 3869600; 716600, 3870000; 716500, Santa Barbara Counties, California. 3881300; 719700, 3880800; 719800, 3870300; 716400, 3870500; 716200, (i) From USGS 1:24,000 scale 3880700; 720300, 3880700; 720300, 3870700; 715900, 3870800; 715400, quadrangle map Sisquoc. Lands 3880200; 719600, 3880400; 719500, 3870900; 715100, 3870900; 715000, bounded by UTM Zone 10, NAD 1927 3880300; 719600, 3879500; 719700, 3871100; 715200, 3872300; 715000, coordinates (E, N): 741100, 3853100; 3879100; 720300, 3878900; 720400, 3872600; 715500, 3875200; 716000, 741300, 3853400; 741300, 3853500; 3879000; 720400, 3879300; 720000, 3878600; thence north to the boundary 741100, 3853700; 741200, 3854000; 3879500; 720400, 3879700; 720600, ‘‘Open Riding Area’’ in Oceano Dunes 741300, 3854500; 741300, 3854700; 3880000; 720700, 3880000; 721300, State Vehicular Recreation Area at y- 741200, 3854900; 741300, 3855100; 3879500; 721500, 3880000; 721900, coordinate 3878700; thence north along 741300, 3855600; 741400, 3855900; 3880000; 722500, 3879400; 722500, the ‘‘Open Riding Area’’ boundary to y- 741600, 3856200; 741800, 3856300; 3878300; 722300, 3877600; 722000, coordinate 3886500; thence east, 741900, 3856300; 742700, 3855500; 3876600; 721800, 3876000; 721800, returning to 716700, 3886500. 743200, 3854000; 743300, 3853800; 3875700; 721500, 3875800; 721600, (iii) Excluding land bounded by: 743600, 3853400; 743700, 3853300; 3875500; 721800, 3875100; 721800, 727800, 3868100; 727600, 3868100; 744000, 3853000; 744200, 3852900; 3873200; 722200, 3873300; 722300, 727300, 3868000; 727300, 3867800; 745000, 3852400; 745200, 3852300; 3873300; 722900, 3873100; 723200, 727500, 3867600; 727700, 3867600; 745600, 3851900; 745200, 3851400; 3873300; 724100, 3873500; 725800, 727700, 3867800; 727800, 3867800; 744600, 3851700; 744500, 3851700; 3873900; 727000, 3874200; 727600, 727800, 3868100. 744200, 3851400; 743700, 3851400; 3870900; 731700, 3870600; 731700, (iv) Excluding land bounded by: 743400, 3851200; 743300, 3851000; 3869000; 731400, 3869000; 731400, 729800, 3864700; 729400, 3864700; 743200, 3851000; 743200, 3850800; 3868000; 731600, 3868000; 731700, 729400, 3864000; 730200, 3864000; 742500, 3850800; 742100, 3850900; 3867400; 731200, 3867300; 730500, 730400, 3864100; 730400, 3864500; 742300, 3851800; 742400, 3852000; 3867000; 730000, 3867000; 729900, 729800, 3864700. 742200, 3852100; 741600, 3852300; 3866700; 730600, 3866700; 731200, (v) Excluding land bounded by: 741200, 3852400; 741100, 3852500; 3867000; 731600, 3867000; 731700, 726400, 3867300; 726200, 3867000; 741100, 3852700; 741000, 3852800; 3864600; 731200, 3863900; 731400, 726200, 3866900; 726900, 3866400; 741000, 3853000; 741100, 3853100. 3863500; 731800, 3863500; 731800, 727300, 3866100; 727600, 3866300; (ii) Note: Map follows: 3861500; 732300, 3861100; 732500, 727600, 3866500; 727200, 3866600; BILLING CODE 4310–55–P

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Dated: March 10, 2004. 10, 2004. See § 679.20(c)(3)(iii), DEPARTMENT OF COMMERCE Craig Manson, § 679.20(c)(5), and § 679.20(a)(7)(i)(A) Assistant Secretary for Fish and Wildlife and and (C). National Oceanic and Atmospheric Administration Parks. In accordance with § 679.20(d)(1)(iii), [FR Doc. 04–5925 Filed 3–16–04; 8:45 am] the Administrator, Alaska Region, 50 CFR Part 679 BILLING CODE 4310–55–C NMFS, has determined that the A season apportionment of the 2004 [Docket No. 031124287–4060–02; I.D. 031204B] DEPARTMENT OF COMMERCE Pacific cod TAC allocated as a directed fishing allowance to catcher/processor Fisheries of the Exclusive Economic National Oceanic and Atmospheric vessels using hook-and-line gear in the Zone Off Alaska; Pacific Cod by Administration BSAI will soon be reached. Catcher/Processor Vessels Using Consequently, NMFS is prohibiting Trawl Gear in the Bering Sea and 50 CFR Part 679 directed fishing for Pacific cod by Aleutian Islands Management Area catcher/processor vessels using hook- [Docket No. 031124287–4060–02; I.D. and-line gear in the BSAI. AGENCY: National Marine Fisheries 031104A] Service (NMFS), National Oceanic and Classification Fisheries of the Exclusive Economic Atmospheric Administration (NOAA), Commerce. Zone Off Alaska; Pacific Cod by This action responds to the best Catcher/Processor Vessels Using available information recently obtained ACTION: Closure. Hook-and-line Gear in the Bering Sea from the fishery. The Assistant SUMMARY: and Aleutian Islands Management Area NMFS is prohibiting directed Administrator for Fisheries, NOAA, fishing for Pacific cod by catcher/ AGENCY: National Marine Fisheries (AA), finds good cause to waive the processor vessels using trawl gear in the Service (NMFS), National Oceanic and requirement to provide prior notice and Bering Sea and Aleutian Islands Atmospheric Administration (NOAA), opportunity for public comment management area (BSAI). This action is Commerce. pursuant to the authority set forth at 5 necessary to prevent exceeding the A U.S.C. 553(b)(B) as such requirement is ACTION: Closure. season allocation of the 2004 total impracticable and contrary to the public allowable catch (TAC) of Pacific cod SUMMARY: NMFS is prohibiting directed interest. This requirement is specified for catcher/processor vessels fishing for Pacific cod by catcher/ impracticable and contrary to the public using trawl gear in this area. processor vessels using hook-and-line interest as it would prevent the Agency DATES: Effective 1200 hrs, Alaska local gear in the Bering Sea and Aleutian from responding to the most recent time (A.l.t.), March 14, 2004, until 1200 Islands management area (BSAI). This fisheries data in a timely fashion and hrs, A.l.t., April 1, 2004. action is necessary to prevent exceeding would delay the closure of Pacific cod FOR FURTHER INFORMATION CONTACT: the A season apportionment of the 2004 specified for catcher/processor vessels Mary Furuness, 907–586–7228. total allowable catch (TAC) of Pacific using hook-and-line gear in the BSAI. cod allocated for catcher/processor SUPPLEMENTARY INFORMATION: NMFS The AA also finds good cause to vessels using hook-and-line gear in this manages the groundfish fishery in the area. waive the 30–day delay in the effective BSAI according to the Fishery date of this action under 5 U.S.C. Management Plan for the Groundfish DATES: Effective 1200 hrs, Alaska local 553(d)(3). This finding is based upon Fishery of the Bering Sea and Aleutian time (A.l.t.), March 13, 2004, until 1200 the reasons provided above for waiver of Islands Area (FMP) prepared by the hrs, A.l.t., August 15, 2004. prior notice and opportunity for public North Pacific Fishery Management FOR FURTHER INFORMATION CONTACT: Josh comment. Council under authority of the Keaton, 907–586–7228. Magnuson-Stevens Fishery This action is required by § 679.20 SUPPLEMENTARY INFORMATION: NMFS Conservation and Management Act. and is exempt from review under manages the groundfish fishery in the Regulations governing fishing by U.S. BSAI according to the Fishery Executive Order 12866. vessels in accordance with the FMP Management Plan for the Groundfish Authority: 16 U.S.C. 1801 et seq. appear at subpart H of 50 CFR part 600 Fishery of the Bering Sea and Aleutian Dated: March 11, 2004. and 50 CFR part 679. Islands Area (FMP) prepared by the The 2004 final harvest specifications Alan D. Risenhoover, North Pacific Fishery Management for groundfish of the BSAI (69 FR 9242, Council under authority of the Acting Director, Office of Sustainable February 27, 2004), established the Magnuson-Stevens Fishery Fisheries, National Marine Fisheries Service. Pacific cod TAC allocated to catcher/ Conservation and Management Act. [FR Doc. 04–6028 Filed 3–12–04; 2:59 pm] processor vessels using trawl gear in the Regulations governing fishing by U.S. BILLING CODE 3510–22–S BSAI for the period 1200 hrs, A.l.t., vessels in accordance with the FMP January 1, 2004, through 1200 hrs, A.l.t., appear at subpart H of 50 CFR part 600 April 1, 2004 as 23,422 metric tons (mt). and 50 CFR part 679. See § 679.20(c)(3)(iii), § 679.20(c)(5), The 2004 Pacific cod TAC, specified and § 679.20(a)(7)(i)(A) and (C). in the 2004 final harvest specifications In accordance with § 679.20(d)(1)(iii), for groundfish of the BSAI (69 FR 9242, the Administrator, Alaska Region, February 27, 2004), allocated to catcher/ NMFS, has determined that the A processor vessels using hook-and-line season allocation of the 2004 Pacific cod gear in the BSAI, a directed Pacific cod TAC specified for catcher/processor fishing allowance of 48,558 metric tons vessels using trawl gear in the BSAI will for the period 1200 hrs, A.l.t., January soon be reached. Therefore, the Regional 1, 2004, through 1200 hrs, A.l.t., June Administrator is establishing a directed

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