Federal Register / Vol. 67, No. 196 / Wednesday, October 9, 2002 / Rules and Regulations 62897

§ 206.120 [Corrected] paragraph (i) of this section. This Background 6. On page 61459 on the 37th line portion shall be refundable if the Thlaspi californicum (Kneeland from the top of the third column, correct application is denied, or withdrawn Prairie penny-cress) is a perennial ‘‘(vii) Processing for retention of before final action upon it. member of the mustard family records’’ to read ‘‘(viii) Process for * * * * * (Brassicaceae). The species grows from retention of records’’. Dated: October 4, 2002. 9.5 to 12.5 centimeters (3.7 to 4.9 Dated: October 3, 2002. Jeffrey N. Runge, inches) tall with a basal cluster of green John R. D’Araujo, Jr., Administrator. to purplish, sparsely toothed leaves. Leaves borne along the stem are sessile Assistant Director, Response and Recovery [FR Doc. 02–25726 Filed 10–8–02; 8:45 am] Directorate. (without a stalk) with entire to toothed BILLING CODE 4910–59–P margins. The white flowers have [FR Doc. 02–25681 Filed 10–8–02; 8:45 am] strongly ascending flower stalks. BILLING CODE 6718–02–P Thlaspi californicum flowers from April DEPARTMENT OF THE INTERIOR to June. The fruit is a sharply pointed silicle (a short fruit typically no more DEPARTMENT OF TRANSPORTATION Fish and Wildlife Service than two to three times longer than wide), and is elliptic to obovate, without National Highway Traffic Safety wings, and with an ascending stalk. Administration 50 CFR Part 17 Serano Watson (1882) first described Thlaspi californicum based on a 49 CFR Part 594 RIN 1018–AG92 collection made by Volney Rattan from Schedule of Fees Authorized by 49 Endangered and Threatened Wildlife among rocks at Kneeland Prairie at 760 U.S.C. 30141 and Plants; Determination of Critical meters (m) (2,500 feet (ft)) elevation. Habitat for Thlaspi californicum Jepson (1925) later referred to it as T. AGENCY: National Highway Traffic (Kneeland Prairie Penny-cress) alpestre var. californicum. Munz (1959) Safety Administration (NHTSA), DOT. referred to the taxon as T. glaucum var. ACTION: Final Rule; correction. AGENCY: Fish and Wildlife Service, hesperium; however, he segregated it as Interior. T. californicum in his supplement SUMMARY: The final rule adopting fees ACTION: Final rule. (Munz 1968). Holmgren (1971) assigned beginning on page 60596 in the Federal the name Thlaspi montanum var. Register of Thursday, September 26, SUMMARY: We, the U.S. Fish and californicum. Finally, the taxon was 2002, contains errors that need Wildlife Service (Service), designate returned to T. californicum in the correction. critical habitat pursuant to the current Jepson Manual (Hickman 1993, DATES: This correction is effective Endangered Species Act of 1973, as Rollins 1993). October 1, 2002. amended (Act), for Thlaspi californicum Thlaspi californicum is endemic to (Kneeland Prairie penny-cress). The serpentine soils in Kneeland Prairie, FOR FURTHER INFORMATION CONTACT: critical habitat consists of one unit located in the outer north coast range of Coleman Sachs, Office of Chief Counsel, whose boundaries encompass a total Humboldt County, California. NHTSA (202–366–5238). area of approximately 30 hectares (74 Serpentine soils are derived from SUPPLEMENTARY INFORMATION: NHTSA acres) in Humboldt County, California. ultramafic rocks (rocks with unusually published a final rule on September 26, Section 7 of the Act requires Federal large amounts of magnesium and iron). 2002 (67 FR 60596) adopting fees for agencies to ensure that any actions they The entire known distribution of T. Fiscal Year (FY) 2003, and until further fund, authorize, or carry out do not californicum occurs on Ashfield Ridge notice, as authorized by 49 U.S.C. result in the destruction or adverse at elevations ranging from 792 to 841 m 30141, relating to the registration of modification of critical habitat. As (2,600 to 2,760 ft). importers and the importation of motor required by section 4 of the Act, we Plant communities in Kneeland vehicles not certified as conforming to considered economic and other relevant Prairie include the following: California the Federal motor vehicle safety impacts prior to making a final decision annual and introduced perennial standards. This correction corrects that on the size and configuration of the grasslands; seasonal and perennial document. critical habitat unit. wetlands; and mixed oak/Douglas-fir 1. On page 60599 in the first column, DATES: This rule is effective November (Pseudotsuga menziesii) woodlands under Amendatory Instruction 2 to 8, 2002. (SHN 1997). Boulder outcrops in section 594.6, paragraph D is corrected Kneeland Prairie form scattered knobs ADDRESSES: Comments and materials to read as follows: ‘‘D. Revising the last that protrude out of the grasslands. The received, as well as supporting sentence of paragraph (h).’’ majority of these outcrops are volcanic documentation used in the preparation 2. On page 60599 in the first column, rock types such as greenstone pillow of this final rule are available for under Amendatory Instruction 2 to basalt, basalt, tuff, or agglomerates (State inspection, by appointment, during section 594.6, the following paragraph is of California 1975). Along Ashfield normal business hours at the U.S. Fish added: ‘‘F. Revising paragraph (d).’’ Ridge and nearby side ridges, many of and Wildlife Service Office, Arcata Fish 3. On page 60599 in the second the outcrops are serpentine (State of and Wildlife Office, 1655 Heindon column, after paragraph (b), add California 1975). The serpentine Road, Arcata, CA 95521. paragraph (d) to read as follows: outcrops exhibit a distinctive flora * * * * * FOR FURTHER INFORMATION CONTACT: compared to the surrounding grassland (d) That portion of the initial annual Bruce Halstead, Project Leader, Arcata (SHN 2001). In addition to Thlaspi fee attributable to the remaining Fish and Wildlife Office, at the above californicum, serpentine outcrops on activities of administering the address (telephone 707/822–7201; Ashfield Ridge support the following registration program on and after facsimile 707/822–8411). two special interest plants, both October 1, 2002, is set forth in SUPPLEMENTARY INFORMATION: considered as rare by the California

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Native Plant Society: Fritillaria purdyi serpentine patches (1.9 hectares (ha) the colonies are most likely to support (Purdy’s fritillary) and Astragalus (4.7 acres (ac)) and 0.6 ha (1.4 ac)) and T. californicum in the future. rattanii ssp. rattanii (Rattan’s milk- scattered smaller patches of 0.01 ha Historic records for Thlaspi vetch) (SHN 1997). (0.02 ac) to 0.2 ha (0.6 ac) in size. The californicum refer to Kneeland Prairie Little is known about the reproductive two larger serpentine outcrops formed a and Ashfield Ridge as site locations biology of Thlaspi californicum. Some semi-continuous ridgetop exposure (Watson 1882, Holmgren 1971). Over 99 members of the genus, such as T. covering more than 2.4 ha (6 ac), percent of the serpentine soils in montanum, are known to outbreed, extending in an east-west direction Kneeland Prairie occur on Ashfield while others, such as T. alpestre, along the top of the ridge in the area Ridge. Two additional small serpentine primarily self-pollinate (Holmgren now occupied by the airstrip, county outcrops are located on a ridge 1971). Due to its very close taxonomic road, and helitack base (SHN 2001). approximately 4.8 kilometers (km) (3 relationship to T. montanum, T. Construction of the county road, miles (mi)) southwest of Ashfield Ridge californicum is almost certainly an airstrip, and helitack base bisected and (State of California 1975). No historic outbreeder. Generalist bees and flies are fragmented the two largest patches of records exist to show that T. the assumed principal pollinators (SHN suitable habitat into four relatively californicum occupied these two 2001). isolated patches and also reduced the outcrops. Similarly, no current records The only known occurrence of total available habitat by approximately exist to indicate that they are occupied. Thlaspi californicum includes five 50 percent. No data are available on the The next nearest known serpentine relatively distinct groups of plants all distribution or number of individuals outcrops to Kneeland Prairie occur located within 300 m (980 ft) of each prior to this habitat alteration. However, approximately 6.4 km (4 mi) southeast other on three small patches of these colonies probably occupied a of Ashfield Ridge at Iaqua Buttes. The serpentine outcrops at Iaqua Buttes serpentine. The species occupies an area larger area or formed one large colony which is fragmented by the Kneeland support the more widespread Thlaspi prior to these construction activities, Airport and Mountain View Road. We montanum var. montanum. No evidence based on anecdotal evidence. The do not know if genetic interchange of T. californicum or intergradation impacts on population or community occurs between plants in these separate between T. californicum and T. processes from this habitat loss and groups; therefore, the five areas will be montanum var. montanum was possible population reduction are referred to as individual colonies. The observed during surveys at the Iaqua unknown. In general, smaller serpentine location was described as consisting of Buttes site in 2001 (SHN 2001). T. outcrops support a higher number of three colonies in 1990 (Imper 1990, montanum var. montanum also occurs alien species (Harrison 1999). Smaller SHN 2001); a fourth colony was on serpentine soils in the vicinity of outcrops may also be more vulnerable to discovered in 1999 (SHN 2001), and one Horse Mountain approximately 24 km additional colony in 2001 (SHN 2001). recreational impacts, trampling, and (15 mi) northeast of Ashfield Ridge In 1997, the largest colony contained modification of the unique serpentine (SHN 2001). In 2001, serpentine an estimated 10,840 plants (SHN 1997); soil chemistry as a result of enrichment outcrops on the western edge of the Six this estimate was later corrected to from the surrounding meadow system Rivers National Forest were surveyed 9,919 plants (SHN 2001). The sizes of (SHN 2001). Patch size influences fruit for T. californicum. No populations of the other two colonies known in 1997 and flower production in Calystegia this species were located during these were 140 and 40 plants (SHN 1997); collina (serpentine morning glory) (Wolf field visits (Jennings 2001). Service therefore, the total revised estimate in and Harrison 2001). Small outcrops had personnel surveyed the largest known 1997 was 10,099 plants. In 2001, the fewer patches of Calystegia collina, serpentine exposure west of U.S. total number of Thlaspi californicum patches with relatively low densities of Highway 101 and south of Myers Flat plants was estimated at approximately flowers, and they attracted fewer insect (vicinity of Cedar Flat) in 2002; this 5,293 (SHN 2001), with 5,142 plants at visitors. These factors, in addition to a survey also produced negative results. the largest colony, and 90 plants, 30 reduction and/or fragmentation of the No evidence exists to show that the plants, 16 plants, and 15 plants at the site, increase the likelihood of historic range of T. californicum ever four smaller colonies. In 2002, the total extinction. extended beyond Kneeland Prairie (SHN number of plants was estimated at In 2001, all known colonies occupied 2001). approximately 8,954, with 8,851 plants an estimated 0.3 ha (0.8 ac), divided at the largest colony, and 114 plants, 41 among five colonies as follows: 0.29 ha Previous Federal Action plants, 25 plants, and 23 plants at the (0.72 ac); 0.02 ha (0.05 ac); 0.008 ha Federal Government actions for four smaller colonies (Imper 2002). (0.02 ac); 0.004 ha (0.01 ac); and 0.002 Thlaspi californicum began when we These data suggest a large annual ha (0.005 ac). The five known colonies published an updated notice of review turnover in the population and occur on three separate serpentine (NOR) for plants on December 15, 1980 downplay the significance of the outcrops, but they currently occupy (45 FR 82480). This notice included T. population decline noted between 1997 only about 29 percent of the suitable californicum (referred to as T. and 2001. habitat on these three outcrops (total montanum var. californicum) as a Historically, several land use area 1.1 ha (2.8 ac)). In addition to the category 2 candidate. Category 2 activities probably altered the three occupied outcrops, fourteen candidates were those taxa for which distribution and abundance of Thlaspi unoccupied serpentine outcrops occur data in our possession indicated listing californicum colonies. These activities on Ashfield Ridge, ranging in size from might be appropriate, but for which included construction of the county 0.01 ha (0.02 ac) to 0.2 ha (0.6 ac) additional biological information was road in the 1800s (currently Mountain (combined area of 0.9 ha (2.2 ac)). The needed to support a proposed rule. On View Road), the Kneeland Airport in distances between the outcrops range November 28, 1983, we published a 1964, and the California Department of from 10 m to 85 m (33 ft to 279 ft). supplement to the 1980 NOR (48 FR Forestry & Fire Protection (CDFFP) These patches are located within 400 m 53640) as well as the subsequent helitack base in 1980. Prior to 1964, (1,312 ft) of the largest Thlaspi revision on September 27, 1985 (50 FR suitable habitat for T. californicum on californicum colony. Serpentine soils 39526) which included T. m. var. Ashfield Ridge consisted of two contiguous with and in the vicinity of californicum as a category 2 candidate.

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We published revised NORs on A series of court decisions for a December 24, 2001 (66 FR 53756). February 21, 1990 (55 FR 6184) and variety of species overturned our Appropriate Federal and State agencies, September 30, 1993 (58 FR 511440). In determinations that designation of county governments, scientific both notices, we included Thlaspi critical habitat would not be prudent organizations, and other interested montanum var. californicum as a (e.g., Natural Resources Defense Council parties were contacted and requested to category 1 candidate. Category 1 v. U.S. Department of the Interior 113 F. comment. An announcement was candidates are taxa for which we have 3d 1121 (9th Cri. 1997); Conservation posted on the Service website October on file sufficient information on Council for Hawaii v. Babbitt, 2 F. Supp. 24, 2001, and an article was published biological vulnerability and threats to 2d 1280 (D. Hawaii 1998)). Based on the in the Times-Standard newspaper on support preparation of listing proposals, standards applied in those judicial October 29, 2001, inviting general but issuance of the proposed rules are opinions, we reexamined the question public comment. We reopened the precluded by other pending listing of whether designation of critical habitat comment period on May 7 to June 6, proposals of higher priority. In our for Thlaspi californicum was prudent. 2002, to allow for comments on the draft February 28, 1996, Federal Register At the time T. californicum was listed, economic analysis of the proposed Notice of Review of Plant and Animal we found that designation of critical critical habitat (67 FR 30643). Taxa that are Candidates for Listing as habitat was prudent. We received a total of seven written Endangered or Threatened Species On June 17, 1999, our failure to issue comments during the two comment (CNOR) (61 FR 7595), we discontinued final rules for listing Thlaspi periods, including three from designation of multiple categories of californicum and nine other plant designated peer reviewers. Of the four candidates. Only taxa meeting the species as endangered or threatened, comments from private individuals, definition of former category 1 are now and our failure to make a final critical three opposed and one was neutral on considered candidates for listing. T. habitat determination for the 10 species the proposed action. We reviewed all montanum var. californicum was was challenged in Southwest Center for comments received for substantive included as a candidate species in the Biological Diversity and California issues and new information regarding February 28, 1996, notice. Our Native Plant Society v. Babbitt (Case No. critical habitat and Thlaspi September 19, 1997, CNOR (62 FR C99–2992 (N.D.Cal.)). On May 19, 2000, californicum. Public comments are 49397) included T. californicum as a the U.S. District Court for the Northern grouped into two general issues relating candidate for listing. District of California issued an order specifically to (1) procedural and On February 12, 1998 (63 FR 7112), setting the timetable for the regulatory issues and (2) biological we published a proposal to list Thlaspi promulgation of the critical habitat issues. Comments have been californicum as endangered. Our designations. We agreed to complete the incorporated directly into the final rule October 25, 1999, CNOR (64 FR 57533) proposed critical habitat designations or addressed in the following summary. included T. californicum as a taxon for the 10 species by September 30, Issue 1: Procedural and Regulatory proposed for listing as endangered. The 2001. However, in mid-September 2001, Issues final rule listing T. californicum as an plaintiffs agreed to a brief extension of endangered species was published on this due date until October 19, 2001. (1) Comment: Two commenters February 9, 2000 (65 FR 6332). On October 24, 2001, we published a requested that all or a portion of their Section 4(a)(3) of the Act, as proposed rule to designate critical lands be removed from the critical amended, and implementing regulations habitat for Thlaspi californicum (66 FR habitat designation. (50 CFR 424.12) require that, to the 53756). The proposed critical habitat Service Response: Section 4(b)(2) of maximum extent prudent and consisted of one unit whose boundaries the Act states ‘‘The Secretary shall determinable, the Secretary designate encompassed a total area of designate critical habitat, and make critical habitat at the time the species is approximately 30 ha (74 ac) in revisions thereto, under subsection determined to be endangered or Humboldt County, California. The (a)(3) on the basis of the best scientific threatened. Our regulations (50 CFR public comment period was open for 60 data available and after taking into 424.12(a)(1)) state that designation of days until December 24, 2001. We did consideration the economic impact, and critical habitat is not prudent when one not receive any requests for public any other relevant impact, of specifying or both of the following situations exist: hearings during the comment period, any particular area as critical habitat.’’ (1) The species is threatened by taking and we did not hold any public Absent a finding by us that the or other human activity, and hearings. On May 7, 2002, we published economic or other relevant impacts of a identification of critical habitat can be a notice announcing reopening of the critical habitat designation would expected to increase the degree of threat public comment period and availability outweigh the benefits of designation, the to the species; or (2) such designation of of the draft economic analysis for the Act does not provide for the exclusion critical habitat would not be beneficial proposed critical habitat designation for from critical habitat of private lands to the species. At the time Thlaspi T. californicum (67 FR 30643). The essential to the conservation of listed californicum was proposed, we comment period was open for an species. The boundaries of the critical determined that designation of critical additional 30 days until June 6, 2002. In habitat unit were delineated with a 100- habitat for T. californicum was not mid-May 2002, the plaintiffs agreed to m grid. We attempted to exclude areas prudent because of a concern that extend the completion date of the final from the boundary that did not contain publication of precise maps and rule until September 30, 2002. primary constituent elements; however, descriptions of critical habitat in the we did not map the unit in sufficient Federal Register could increase the Summary of Comments and detail to exclude all such areas. The vulnerability of this species to incidents Recommendations lands owned by one of the commenters of collection and vandalism. We also In the proposed rule published on (commenter A) is such an area. This indicated that designation of critical October 24, 2001 (66 FR 53756), we land, less than 2.5 ha (1 ac), is located habitat was not prudent because we requested that all interested parties in the northwest corner of the unit believed it would not provide any submit comments that might contribute boundary and does not contain any additional benefit beyond that provided to the development of the final rule. The primary constituent elements. through listing as endangered. first comment period closed on Therefore, by definition this

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commenter’s land is not critical habitat. Service Response: The current on the serpentine outcrops and adjunct The other commenter’s (commenter B) population sampling design involves a prairie is needed to ensure ecological land does contain primary constituent complete count of plants in the four functions of the species’’ and ‘‘the elements. We believe that this parcel of small colonies and uses a statistical- definition of primary constituent land contains components essential to based sampling protocol to estimate the elements * * * is comprehensive and the conservation of Thlaspi number of plants in the largest colony. well planned.’’ californicum because it includes one of In 2001 and 2002, surveys were A second peer reviewer stated that the the fourteen unoccupied serpentine conducted in an attempt to locate new ‘‘proposed actions, were, even without outcrops on Ashfield Ridge. We believe populations of Thlaspi californicum. complete data, reasonable and based on that the designation of these lands These surveys occurred in the following solid scientific assumptions.’’ The (commenter B) in this final rule as locations: (1) Iaqua Buttes which is the reviewer recommended a monitoring critical habitat outweigh the benefits of nearest known serpentine outcrop to strategy that includes establishment of their exclusion from being designated as Kneeland Prairie; (2) suitable habitat permanent plots and marking critical habitat. The possible removal of located on the Six Rivers National individuals. In 2002, we established these lands from the designation is also Forest within 16 km (10 mi) north and permanent grids and mapped individual addressed in the Exclusions Under south of the Kneeland Prairie site; and plants in order to monitor life history Section 4(b)(2) section of this rule. (3) the largest known serpentine and species composition. (2) Comment: One commenter was exposure west of U.S. Highway 101 and The third peer reviewer suggested that concerned about the impacts of the south of Myers Flat. No new T. herbivory on the known population and designation on private landowners and californicum sites were located during the survey of potential habitat on Six wanted to know if private landowners any of these surveys. As stated by one Rivers National Forest lands should be discussed. Discussions of these issues would be compensated for the loss of of the peer reviewers, the data show that were added to the final rule. The use of their lands because of protective this plant is restricted to one location on reviewer also stated that the ‘‘*** measures. Another noted generally that Ashfield Ridge. inclusion of unoccupied habitat and the Constitution does not give plants (2) Comment: One peer reviewer primary constituent elements * * *’’ rights over citizens. suggested that the potential impacts of herbivory should be addressed. was supported by the literature. Service Response: Designation of Service Response: Cattle grazing has Critical Habitat critical habitat, by itself, does not occurred in Kneeland Prairie for at least require private landowners to undertake a century. The current level of grazing Critical habitat is defined in section 3, any management activities or otherwise appears relatively low. Unique paragraph (5)(A) of the Act as—(i) the restrict the use of private lands. Critical serpentine soils in Kneeland Prairie specific areas within the geographic area habitat applies only to actions carried support low total plant cover (typically occupied by a species, at the time it is out, funded, or permitted by the Federal less than 40 percent) and do not support listed in accordance with the Act, on Government. The Act provides that many of the desirable forage species which are found those physical or Federal actions may not destroy or available in the prairie. Impacts of cattle biological features (I) essential to the adversely modify critical habitat. grazing are not quantified, but available conservation of the species and (II) that Critical habitat designation will not evidence suggests they are minimal at may require special management affect any uses of private land unless the current low stocking level. Recent considerations or protection; and (ii) actions on the land are carried out, data suggest that herbivory by rabbits or specific areas outside the geographic funded, or require authorization from other small mammals may be significant area occupied by a species at the time the Federal Government. If a Federal in some colonies, but no quantitative it is listed, upon a determination that nexus does exist for a particular activity data have yet been collected on the such areas are essential for the on private lands, the activity may still magnitude of this impact. conservation of the species. Areas proceed unless the Service concludes outside the geographic area currently that the action would destroy or Peer Review occupied by the species shall be adversely modify critical habitat. In that In accordance with our policy designated as critical habitat only when event, the Act provides for the published on July 1, 1994 (59 FR a designation limited to its present development of reasonable and prudent 34270), we solicited independent range would be inadequate to ensure the alternatives to the proposed activity that opinions from five knowledgeable conservation of the species. meet its intended purposes and would individuals with expertise in botany. Conservation is defined in section avoid the destruction or adverse Three of the five peer reviewers 3(3) of the Act as the use of all methods modification of critical habitat. Given provided comments that are and procedures which are necessary to the nature of activities currently summarized in the previous section and bring any endangered or threatened occurring on the designated private incorporated in the final rule; all three species to the point at which listing lands and likely to occur in the future reviewers supported the proposal. None under the Act is no longer necessary. as described below, the likelihood of a of the reviewers provided new Regulations under 50 CFR 424.02(j) future federal nexus is remote and the information about the biology or define special management likelihood of any future section 7 distribution of Thlaspi californicum or considerations or protection to mean consultation under the Act resulting in about additional areas considered any methods or procedures useful in compensable restrictions on private essential to its conservation. protecting the physical and biological land uses is even more unlikely. One peer reviewer stated that the features of the environment for the methods and criteria used in the Issue 2: Biological Concerns conservation of listed species. proposed rule are ‘‘* * * sound in light Habitat included in a critical habitat (1) Comment: One commenter of current conservation biology theory designation must first be ‘‘essential to questioned the information provided on and the information known about the the conservation of the species.’’ Critical population numbers and whether taxonomy and ecology of the species’’. habitat designations identify, to the Thlaspi californicum is growing in other The reviewer also stated that the ‘‘*** extent known using the best scientific places. inclusion of unoccupied habitat * * * and commercial data available, habitat

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areas that provide essential life cycle plans developed by States and counties, dispersal mechanisms; and protection needs of the species (i.e., areas on which scientific status surveys and studies, and maintenance of proximal areas for are found the primary constituent and biological assessments, the survival of pollinators and seed elements, as defined at 50 CFR unpublished materials, and expert dispersal agents. In addition, the small, 424.12(b)). opinion or personal knowledge. fragmented distribution of this species When we designate critical habitat at makes it especially vulnerable to edge Methods the time of listing, as required under effects from adjacent activities, such as section 4 of the Act, or under short As required by the Act and the spread of non-native species; nearby court-ordered deadlines, we may not regulations (section 4(b)(2) and 50 CFR uses of herbicides and pesticides; have the information necessary to 424.12), we used the best available livestock grazing; and erosion due to identify all areas which are essential for scientific information in determining natural or diverted flow patterns. the conservation of the species. which areas were essential for the Based on our knowledge of this Nevertheless, we are required to conservation of Thlaspi californicum. species to date, the primary constituent designate those areas we know to be This information included data from the elements of critical habitat for Thlaspi critical habitat, using the best following sources: 1993 United States californicum consist of, but are not information available to us. Geological Survey (USGS) 1:24,000 limited to: We will designate only currently scale, 3.75′, infrared, color digital, (1) Thin rocky soils that have known essential areas. Essential areas orthophotographic, quarter quadrangle developed on exposures of serpentine should already have the features and images; geologic map of the Van Duzen substrates (SHN 2001); habitat characteristics that are necessary River Basin (State of California 1975); (2) Plant communities that support a to sustain the species. We will not 1962 panchromatic, 1:12,000 scale, relatively sparse assemblage of speculate about what areas might be aerial photograph HCN–2 22–17; serpentine indicator or facultative- found to be essential if better ownership parcels from the Humboldt serpentine indicator species, including information became available, or what County Planning Department, updated various native forbs and grasses but not areas may become essential over time. If as of August 2000; recent biological trees or shrubs, such that competition information available at the time of surveys and reports; and discussions for space and water (both above and designation does not show an area with botanical experts. We also below ground), and light is reduced, provides essential life cycle needs of the conducted or contracted for site visits, compared to the surrounding habitats species, then the area should not be either cursory or more extensive, at (SHN 2001). Known associated species included in the critical habitat locations on private lands where access include: Festuca rubra (red fescue), designation. We will not designate areas was obtained, on State lands managed Koeleria macrantha (junegrass), Elymus that do not now have the primary by CDFFP, and on public lands glaucus (blue wildrye), Eriophyllum constituent elements, as defined at 50 managed by Six Rivers National Forest lanatum (woolly sunflower), Lomatium CFR 424.12(b), that provide essential and the Bureau of Land Management, macrocarpum (large-fruited lomatium), life cycle needs of the species. including Iaqua Buttes and Board Camp and Viola hallii (Hall’s violet) (SHN Our regulations state that, ‘‘The Mountain. 2001); Secretary shall designate as critical (3) Serpentine substrates that contain Primary Constituent Elements habitat areas outside the geographic area 15 percent or greater (by surface area) of presently occupied by the species only In accordance with section 3(5)(A)(i) exposed gravels, cobbles, or larger rock when a designation limited to its of the Act and regulations at 50 CFR fragments, which may contribute to present range would be inadequate to 424.12, in determining which areas to alteration of factors of microclimate, ensure the conservation of the species’’ propose as critical habitat, we are including surface drainage and moisture (50 CFR 424.12(e)). Accordingly, we do required to consider those physical and availability, exposure to wind and sun, not designate critical habitat in areas biological features (primary constituent and temperature (SHN 2001); and outside the geographic area occupied by elements) that are essential to the (4) Prairie grasslands and oak the species unless the best scientific and conservation of the species and that may woodlands located within 30 m (100 ft) commercial data demonstrate that the require special management of the serpentine outcrop area on unoccupied areas are essential for the considerations or protection. These Ashfield Ridge. Protection of these conservation needs of the species. include, but are not limited to: space for habitats is essential to the conservation Our Policy on Information Standards individual and population growth, and of the Thlaspi californicum in that it Under the Endangered Species Act, for normal behavior; food, water, air, will provide connectivity among the published on July 1, 1994 (59 FR light, minerals or other nutritional or serpentine sites, help to maintain the 34271), provides criteria, establishes physiological requirements; cover or hydrologic and edaphic integrity of the procedures, and provides guidance to shelter; sites for germination, or seed serpentine sites, and support ensure that our decisions represent the dispersal; and habitats protected from populations of pollinators and seed best scientific and commercial data disturbance or which are representative dispersal organisms. available. It requires that our biologists, of the historic geographical and to the extent consistent with the Act and ecological distributions of a species. Criteria Used To Identify Critical with the use of the best scientific and The long-term probability of Habitat commercial data available, use primary conservation of Thlaspi californicum is In our delineation of the critical and original sources of information as dependent upon a number of factors, habitat unit, we selected areas to the basis for recommendations to including protection of serpentine sites provide for the conservation of Thlaspi designate critical habitat. When containing existing colonies; protection californicum at the only location it is determining which areas are critical of adequate serpentine sites on Ashfield known to occur. Adult individuals of habitat, a primary source of information Ridge to allow for recolonization or the species currently only grow on should be the listing package for the expansion; preservation of the approximately 0.3 ha (0.8 ac) of land on species. Additional information may be connectivity between serpentine sites to Ashfield Ridge in Kneeland Prairie. obtained from a recovery plan, articles allow gene flow between the colonies However, the area essential for the in peer-reviewed journals, conservation through pollinator activity and seed conservation of the species is not

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restricted solely to the area where the Thlaspi californicum is known only to Kneeland Airport and CDFFP helitack plant is physically visible. It must occur on State, county, and private base; road realignment; fires caused by include an area large enough to lands. We are not aware of any Tribal airplane or vehicular accidents; maintain the ecological functions upon lands in or near our designated critical contaminant spills; erosion; application which the species depends (e.g., the habitat unit for T. californicum. of herbicides and pesticides; livestock hydrologic and edaphic conditions). We used a geographic information grazing; and introduction and spread of We first mapped all known Thlaspi system (GIS) to facilitate identification exotic species. californicum occurrences. Due to the of critical habitat areas. We used Additional special management is not historic loss and fragmentation of the information from recent biological required if adequate management or largest patches of suitable habitat, we surveys and reports; discussions with protection is already in place. Adequate also mapped all suitable habitat in botanical experts; and locations of special management considerations or proximity to the known occurrences. serpentine soils to create GIS data protection are provided by a legally Maintaining the number and layers. Serpentine soil sites were operative plan or agreement that distribution of serpentine outcrops on derived from a geologic map, infrared addresses the maintenance and Ashfield Ridge will help to ensure the color digital orthophotos, and global improvement of the primary constituent long-term viability of T. californicum, as positioning system data collected in the elements important to the species and high-quality habitat patches in close field during 2000 and 2001. These data manages for the long-term conservation proximity to a source population have layers were created on a base of 1:24,000 of the species. Currently, no plans the highest likelihood of future scale USGS 3.75’, infrared, color digital, meeting these criteria have been occupancy (Murphy et al. 1990). orthophotographic, quarter quadrangle developed for Thlaspi californicum. Protection of these outcrops will images. We used these data layers to Critical Habitat Designation provide a range of habitat conditions, map the primary constituent elements. for example, moisture availability, We defined boundaries of the The critical habitat area described temperature, and wind exposure, which designated critical habitat unit by below includes all the primary will optimize the opportunities for overlaying this map with a 100–m constituent elements discussed above, recolonization or expansion and reduce Universal Transverse Mercator (UTM) and constitutes our best assessment at the likelihood of extinction due to North American Datum of 1927 this time of the areas needed for the stochastic events. They will also protect (NAD27) grid and removing all NAD27 species’ conservation. Critical habitat is undetected T. californicum colonies and grid cells that did not contain the designated for Thlaspi californicum at seed banks. primary constituent elements. the only location it is known to occur. We also mapped grasslands and oak In selecting the critical habitat area, We are designating one unit of critical woodlands surrounding the serpentine we attempted to avoid developed areas habitat, comprising 30 ha (74 ac), outcrops. These areas provide and other lands unlikely to contribute to surrounding Kneeland Airport and connectivity between all serpentine the conservation of Thlaspi roughly bisected by Mountain View outcrops; maintain the hydrologic and californicum. However, we did not map Road. The unit includes all 5 known edaphic integrity of the serpentine sites; the critical habitat unit in sufficient colonies and all other serpentine and support biological agents of detail to exclude all such areas. Existing outcrops in close proximity to the pollination and seed dispersal necessary features and structures within the colonies. All of the critical habitat unit for the conservation of the species. critical habitat unit boundary, such as for Thlaspi californicum is located on Inclusion of the grasslands and oak buildings, roads, and other paved areas Ashfield Ridge in Kneeland Prairie, woodlands will also minimize impacts will not contain one or more of the Humboldt County, California. This ridge to serpentine outcrops resulting from primary constituent elements and, separates the Van Duzen and Mad River external peripheral influences, such as hence, are not considered critical basins near the community of Kneeland erosion, grazing, or the spread of exotic habitat. Federal actions limited to these in central Humboldt County. species. areas, therefore, would not trigger a The unit contains approximately 2 ha At this time, we are not designating as section 7 consultation, unless they affect (5 ac) of serpentine soils. Approximately critical habitat any serpentine outcrops the species or primary constituent 16 percent (0.3 ha (0.8 ac)) of the within Kneeland Prairie, other than the elements in adjacent critical habitat. serpentine soils are known to be outcrops on Ashfield Ridge. A draft occupied. However, undetected colonies recovery plan is in preparation, which Special Management Considerations or may exist on the serpentine soils within does not call for establishment of Protections the unit. The approximate area, by land Thlaspi californicum beyond Ashfield As noted in the Critical Habitat ownership, of this unit is shown in Ridge. However, since T. californicum section, ‘‘special management Table 1. Approximately 5 percent (2 ha has an extremely restricted range, considerations or protection’’ is a term (4 ac)) of this area consists of State establishment at new locations may be that originates in the definition of lands, while County lands comprise determined necessary to provide critical habitat. We believe the critical approximately 11 percent (3 ha (8 ac)), insurance against stochastic events. In habitat area may require special and private lands comprise that case, critical habitat may be management considerations or approximately 84 percent (25 ha (62 reevaluated based on recommendations protection because Thlaspi californicum ac)). No Federal lands are within the in the final recovery plan. occupies an extremely localized range. critical habitat unit. This species is not We considered ownership status in Potential threats to the habitat of T. known to occur or to have occurred delineating areas as critical habitat. californicum include: expansion of historically on Federal lands.

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TABLE 1.—APPROXIMATE AREAS AND PERCENT OF CRITICAL HABITAT OF Thlaspi californicum IN HECTARES (HA) (ACRES (AC)) IN HUMBOLDT COUNTY, CALIFORNIA, BY LAND OWNERSHIP. ESTIMATES REFLECT THE TOTAL AREA WITHIN CRIT- ICAL HABITAT UNIT BOUNDARIES.

Ownership Hectares Acres Percent

State ...... 2 4 5 Private ...... 25 62 84 County ...... 3 8 11 Federal ...... 0 0 0

TOTAL ...... 30 74 100

Effects of Critical Habitat Designation If a species is listed or critical habitat If Thlaspi californicum is discovered Section 7 Consultation is designated, section 7(a)(2) requires on Federal lands, those activities on Federal agencies to ensure that activities Federal lands that may affect T. Section 7(a)(2) of the Act requires they authorize, fund, or carry out are not californicum or its critical habitat would Federal agencies, including the Service, likely to jeopardize the continued require a section 7 consultation. to ensure that actions they fund, existence of such a species or to destroy Activities on private or State lands authorize, permit, or carry out do not or adversely modify its critical habitat. requiring a permit from a Federal destroy or adversely modify critical If a Federal action may affect a listed agency, such as a permit from the Army habitat to the extent that the action species or its critical habitat, the Corps of Engineers under section 404 of appreciably diminishes the value of the responsible Federal agency (action the Clean Water Act, a section critical habitat for the conservation of agency) must enter into consultation 10(a)(1)(B) permit from the Service, or the species. Individuals, organizations, with us. Through this consultation, the some other Federal action, including States, local governments, and other Federal action agency would ensure that funding (e.g., Federal Housing non-Federal entities are affected by the the permitted actions do not jeopardize Administration, Federal Aviation designation of critical habitat only if the species or destroy or adversely Administration (FAA), or Federal their actions occur on Federal lands, modify critical habitat. Emergency Management Agency), will require a Federal permit, license, or When we issue a biological opinion also continue to be subject to the section other authorization, or involve Federal concluding that a project is likely to 7 consultation process. Federal actions funding. result in the destruction or adverse not affecting listed species or critical modification of critical habitat, we also Section 7(a) of the Act requires habitat, as well as actions on non- provide ‘‘reasonable and prudent Federal lands that are not federally Federal agencies to evaluate their alternatives’’ to the project, if any are actions with respect to any species that funded, authorized, or permitted will identifiable. Reasonable and prudent not require section 7 of the Act is proposed or listed as endangered or alternatives are defined at 50 CFR threatened, and with respect to its consultations. 402.02 as alternative actions identified Section 4(b)(8) of the Act requires us critical habitat, if any is designated or during consultation that can be to briefly describe and evaluate in any proposed. Regulations implementing implemented in a manner consistent proposed or final regulation that this interagency cooperation provision with the intended purpose of the action, designates critical habitat those of the Act are codified at 50 CFR part that are consistent with the scope of the activities involving a Federal action that 402. Section 7(a)(4) of the Act requires Federal agency’s legal authority and may adversely modify such habitat or Federal agencies to confer with us on jurisdiction, that are economically and that may be affected by such any action that is likely to jeopardize technologically feasible, and that the designation. Activities that may destroy the continued existence of a proposed Director believes would avoid or adversely modify critical habitat species or result in destruction or destruction or adverse modification of would be those that alter the primary adverse modification of proposed critical habitat. Reasonable and prudent constituent elements to the extent that critical habitat. Conference reports alternatives can vary from slight project the value of critical habitat for the provide conservation recommendations modifications to extensive redesign or conservation of Thlaspi californicum is to assist the agency in eliminating relocation of the project. appreciably reduced. We note that such conflicts that may be caused by the Regulations at 50 CFR 402.16 require activities may also jeopardize the proposed action. The conservation Federal agencies to reinitiate continued existence of the species. recommendations in a conference report consultation on previously reviewed Activities that, when carried out, are advisory. actions in instances where critical funded, or authorized by a Federal We may issue a formal conference habitat is subsequently designated and agency, may directly or indirectly report if requested by a Federal agency. the Federal agency has retained destroy or adversely modify critical Formal conference reports include an discretionary involvement or control habitat include, but are not limited to: opinion that is prepared according to 50 over the action or such discretionary (1) Ground disturbance of serpentine CFR 402.14, as if the species was listed involvement or control is authorized by outcrops and grassland and oak or critical habitat were designated. We law. Consequently, some Federal woodland areas, including but not may adopt the formal conference report agencies may request reinitiation of limited to grading, ripping, tilling, and as the biological opinion when the consultation or conference with us on paving; species is listed or critical habitat is actions for which formal consultation (2) Alteration of serpentine outcrops, designated, if no substantial new has been completed if those actions may including but not limited to removal of information or changes in the action affect designated critical habitat, or boulders, mining, and quarrying; alter the content of the opinion (50 CFR adversely modify or destroy proposed (3) Removing, destroying, or altering 402.10 (d)). critical habitat. vegetation in the critical habitat unit,

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including but not limited to illustrates, that the designation of lands have been excluded from the inappropriately managed livestock critical habitat is not likely to result in designation based on economic impacts grazing, clearing, introducing or a significant regulatory burden above or other relevant factors pursuant to encouraging the spread of nonnative that already in place due to the presence section 4(b)(2). species, recreational activities, and of the listed species. Few additional maintaining an unnatural fire regime consultations are likely to be conducted Relationship to Habitat Conservation either through fire suppression or due to the designation of critical habitat. Plans frequent and poorly timed prescribed Designation of critical habitat could No habitat conservation plans (HCPs) fires; affect the following agencies and/or (4) Hydrologic changes or other actions: Development on private, State, currently exist that include Thlaspi activities that alter surface drainage or county lands requiring permits or californicum as a covered species. patterns resulting in erosion of funding from Federal agencies, such as However, the designated lands are serpentine outcrops or adjacent areas, the U.S. Army Corps of Engineers, the covered lands in the Pacific Lumber including but not limited to water Department of Housing and Urban Company’s HCP. Section 10(a)(1)(B) of diversion, groundwater pumping, Development, the FAA, or the Federal the Act authorizes us to issue permits irrigation, and erosion control; Highway Administration; construction for the take of listed species incidental (5) Construction or maintenance of communication sites licensed by the to otherwise lawful activities. An activities that destroy or degrade critical Federal Communications Commission; incidental take permit application must habitat, including but not limited to and authorization of Federal grants or be supported by an HCP that identifies road building, building construction, loans. These actions would be subject to conservation measures that the airport expansion, drilling, and culvert the section 7 process. Where federally permittee agrees to implement for the maintenance or installation; listed wildlife species occur on private species to minimize and mitigate the (6) Application or runoff of pesticides, lands proposed for development, any impacts of the permitted incidental take. herbicides, fertilizers, or other chemical habitat conservation plans submitted by Although ‘‘take’’ of listed plants is not or biological agents; and the applicant to secure a permit to take prohibited by the Act, listed plant (7) Emergency response and clean-up according to section 10(a)(1)(B) of the species may also be covered in an HCP of fuel or other contaminant spills. Act would be subject to the section 7 for wildlife species. To properly understand the effects of consultation process. critical habitat designation, we must If you have questions regarding In most instances, we believe that the first compare the requirements pursuant whether specific activities would benefits of excluding HCPs from critical to section 7 of the Act for actions that constitute adverse modification of habitat designations will outweigh the may affect critical habitat with the critical habitat, contact the Project benefits of including them. In the event requirements for actions that may affect Leader, Arcata Fish and Wildlife Office that future HCPs covering Thlaspi a listed species. Section 7 of the Act (see ADDRESSES section). Requests for californicum are developed within the prohibits actions funded, authorized, or copies of the regulations on listed boundaries of the designated critical carried out by Federal agencies from wildlife, and inquiries about habitat, we will work with applicants to jeopardizing the continued existence of prohibitions and permits may be ensure that the HCPs provide for a listed species or destroying or addressed to the U.S. Fish and Wildlife protection and management of habitat adversely modifying the listed species’ Service, Region 1, Division of areas essential for the conservation of critical habitat. Actions likely to Endangered Species, 911 NE 11th this species. This will be accomplished ‘‘jeopardize the continued existence’’ of Avenue, Portland, OR 97232–4181 (503/ by either directing development and a species are those that would 231–6131, facsimile 503/231–6243). habitat modification to nonessential appreciably reduce the likelihood of the Exclusions Under Section 4(b)(2) areas, or appropriately modifying species’ survival and recovery. Actions activities within essential habitat areas likely to ‘‘destroy or adversely modify’’ Subsection 4(b)(2) of the Act allows so that such activities will not adversely critical habitat are those that would us to exclude areas from the critical modify the primary constituent appreciably reduce the value of critical habitat designation where the benefits of elements. The HCP development habitat for the survival and recovery of exclusion outweigh the benefits of process provides an opportunity for the listed species. designation, provided the exclusion will Common to both definitions is an not result in extinction of the species. more intensive data collection and appreciable detrimental effect on the As discussed in this final rule and our analysis regarding the use of particular survival and recovery of a listed species. economic analysis for this rulemaking, habitat areas by T. californicum. The Given the similarity of these definitions, we have determined that no significant process also enables us to conduct actions likely to destroy or adversely adverse economic effects will result detailed evaluations of the importance modify critical habitat would almost from this critical habitat designation. of such lands to the long-term survival always result in jeopardy to the species We believe the areas included in this of the species in the context of concerned, particularly when the area of designation are essential for the constructing a biologically configured the proposed action is occupied by the conservation of Thlaspi californicum system of interlinked habitat blocks. We species concerned. Designation of because they protect the existing will also provide technical assistance critical habitat in areas occupied by colonies, all suitable serpentine sites on and work closely with applicants Thlaspi californicum is not likely to Ashfield Ridge, connectivity between throughout the development of any result in a regulatory burden above that the serpentine sites, and the ecological future HCPs to identify lands essential already in place due to the presence of functions upon which the species for the long-term conservation of T. the listed species. Designation of critical depends. We believe that the californicum. Furthermore, we will habitat in areas not occupied by T. designation of the lands in this final complete intra-Service consultation on californicum may result in an additional rule as critical habitat outweigh the our issuance of section 10(a)(1)(B) regulatory burden when a Federal nexus benefits of their exclusion from being permits for these HCPs to ensure permit exists. However, we believe, and the designated as critical habitat. issuance will not destroy or adversely economic analysis discussed below Consequently, none of the proposed modify critical habitat.

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Economic Analysis improvement project. The analysis in our administrative record and may be Section 4(b)(2) of the Act requires us estimates economic costs for two obtained by contacting the Arcata Fish to designate critical habitat on the basis possible outcomes from this and Wildlife Office (see ADDRESSES of the best scientific and commercial consultation. Both estimates conclude section). Copies of the final economic information available, and to consider that the costs are attributable co- analysis also are available on the the economic and other relevant extensively to the listing of Thlaspi Internet at http://pacific.fws.gov/news/. californicum due to the species limited impacts of designating a particular area Required Determinations as critical habitat. Following the distribution and suitable habitat. We are publication of the proposed critical not aware of any future activities on Regulatory Planning and Review habitat designation, a draft economic State or private lands included in the In accordance with Executive Order designation would involve a Federal analysis was prepared by Economic & 12866, this document is a significant nexus. Planning Systems, Inc. for the Service. rule and has been reviewed by the Based on our economic analysis, we Office of Management and Budget The draft analysis was made available concluded that the designation of (OMB), as OMB determined that this for review on May 7, 2002 (67 FR critical habitat would result in little rule may raise novel legal or policy 30643). The public comment on the additional regulatory burden or issues. The Service prepared an draft analysis was open until June 6, associated significant additional costs economic analysis of this action. The 2002, however, we did not receive any above and beyond those attributable to comments. the listing of Thlaspi californicum due Service used this analysis to meet the Our economic analysis evaluated the to the limited extent of the designation requirement of section 4(b)(2) of the potential future effects associated with and the limited amount of reasonably Endangered Species Act to determine the listing of Thlaspi californicum as an foreseeable activity with a Federal the economic consequences of endangered species, as well as potential nexus in the area. designating the specific areas as critical effects of the critical habitat designation The economic analysis concludes that habitat. The draft EA was made above and beyond those regulatory and the only existing or reasonably available for public comment, and we economic impacts associated with foreseeable activity that will require considered comments on it during the listing. To quantify the proportion of consultation is the proposed Kneeland preparation of this rule. total potential economic impacts Airport improvement project. The most Regulatory Flexibility Act (5 U.S.C. 601 attributable to the critical habitat likely outcome of the consultation et seq.) designation, the analysis evaluated a would be approval of the proposal as ‘‘without section 7’’ baseline and presented or a recommendation to Under the Regulatory Flexibility Act compares it to a ‘‘with section 7’’ implement minor project modifications. (5 U.S.C. 601 et seq., as amended by the scenario. The ‘‘without section 7’’ The precise nature of any recommended Small Business Regulatory Enforcement baseline represents the level of project modifications is difficult to Fairness Act (SBREFA) of 1996), protection currently afforded to the predict in advance of the actual whenever an agency is required to species under the Act, absent section 7 consultation, however, the economic publish a notice of rulemaking for any protective measures, and includes analysis estimates that the type of minor proposed or final rule, it must prepare protections afforded by other Federal, modification that may be associated and make available for public comment State, and local laws such as the with a consultation may cost around a regulatory flexibility analysis that California Environmental Quality Act. $113,000. The analysis also estimated describes the effects of the rule on small The ‘‘with section 7’’ scenario identifies the potential cost to the economy under entities (i.e., small businesses, small land-use activities likely to involve a the extreme assumption that the organizations, and small government Federal nexus that may affect the improvement project was found to jurisdictions). However, no regulatory species or its designated critical habitat, jeopardize the species or adversely flexibility analysis is required if the which accordingly may trigger future modify critical habitat and that the head of the agency certifies the rule will consultations under section 7 of the Act. Service is unable to identify any not have a significant economic impact Upon identifying section 7 impacts, reasonable and prudent alternatives that on a substantial number of small the analysis proceeds to consider the would allow the project to proceed in entities. A ‘‘substantial number’’ of subset of impacts that can be attributed another form. Cost associated with this small entities is more than 20 percent of exclusively to the critical habitat scenario are estimated to range between those small entities affected by the designation. The upper-bound estimate $169,000 and $4.2 million depending on regulation, out of the total universe of includes both jeopardy and critical how the County’s chooses to address the small entities in the industry or, if habitat impacts. The subset of section 7 airport maintenance or whether or not appropriate, industry segment. SBREFA impacts likely to be affected solely by they construct a replacement airport. amended the Regulatory Flexibility Act the designation of critical habitat Because of T. californicum’s (RFA) to require Federal agencies to represents the lower-bound estimate of extremely limited distribution and small prepare a statement of the factual basis the analysis. The categories of potential amount of available suitable habitat, it for certifying that the rule will not have costs considered in the analysis is assumed that the Kneeland Airport a significant economic impact on a included costs associated with: (1) improvement project would be subject substantial number of small entities. Identifying the effect of the designation to consultation on potential impacts to SBREFA also amended the RFA to on a particular parcel or land use the species, regardless of critical habitat require a certification statement. For the activity (e.g., technical assistance, designation. Therefore, these potential reasons stated in the proposed rule, in section 7 consultations); and (2) costs are attributable co-extensively to addition to the reasons stated below, we modification to projects, activities, or the listing of the Thlaspi californicum. certify that critical habitat designation land uses resulting from the section 7 The designation of critical habitat is not for Thlaspi californicum will not have a consultations. expected to result in any significant significant effect on a substantial The only reasonably foreseeable additional regulatory protection. number of small entities. activity that will require consultation is A copy of the final economic analysis According to the Small Business the County’s proposed Kneeland Airport and supporting documents are included Administration, small entities include

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small organizations, such as thousand.’’ (U.S.C. 601), Humboldt proponents. The area designated as independent nonprofit organizations, County was not considered a small critical habitat is small, less than 30 ha and small government jurisdictions, entity for purposes of this analysis, even (74 ac), and we have identified fewer including school boards and city and though the analysis did consider the than a half-dozen landowners. The scale town governments that serve fewer than potential effects of the airport of the designation ensures that the 50,000 residents, as well as small improvement project. Similarly, the ‘‘substantial number of small entities’’ businesses (13 CFR 121.201). Small other private landowners are not threshold of the Regulatory Flexibility businesses include manufacturing and considered small businesses under the Act will not be met. mining concerns with fewer than 500 scope of SBREFA. Designation of critical habitat could employees, wholesale trade entities The economic analysis did, however, result in an additional economic burden with fewer than 100 employees, retail consider whether the activities of these on small entities due to the requirement and service businesses with less than $5 landowners have any Federal to reinitiate consultation for ongoing million in annual sales, general and involvement because designation of Federal activities. However, the Service heavy construction businesses with less critical habitat only affects activities is unaware of any ongoing Federal than $27.5 million in annual business, conducted, funded, or permitted by activities that affect this species, and special trade contractors doing less than Federal agencies; non-Federal activities since Thlaspi californicum was listed $11.5 million in annual business, and are not affected by the designation. No (2000), the Service has not conducted agricultural businesses with annual Federal lands occur within the any formal or informal consultations sales less than $750,000. To determine designated critical habitat unit. Land involving this species. if potential economic impacts to these use within the majority of the unit, Therefore, we certify that the small entities are significant, the Service outside of the existing developed areas, designation of critical habitat for considered the types of activities that consists of livestock grazing and Thlaspi californicum will not have a might trigger regulatory impacts under unforested lands surrounding timber significant economic impact on a this rule as well as the types of project lands. None of these activities is likely substantial number of small entities. A modifications that may result. In to trigger a future section 7 consultation. regulatory flexibility analysis is not general, the term significant economic The likelihood of future development in required. these areas is low, with the exception of impact is meant to apply to a typical Small Business Regulatory Enforcement the future airport expansion under small business firm’s business Fairness Act (5 U.S.C. 804(2)) operations. consideration. If the proposed airport To determine if the rule would affect expansion proceeds, the Federal As discussed above, this rule is not a a substantial number of small entities, Aviation Administration will likely be major rule under 5 U.S.C. 804(2), the the Service considered the number of required to consult with the Service Small Business Regulatory Enforcement small entities affected within particular under section 7 of the Act on activities Fairness Act (SBREFA). This final types of economic activities (e.g., that agency funds, permits, or designation of critical habitat: (a) does housing development, grazing, oil and implements that may affect Thlaspi not have an annual effect on the gas production, timber harvesting, etc.). californicum. With this critical habitat economy of $100 million; (b) will not The Service applied the ‘‘substantial designation, the Federal Aviation cause a major increase in costs or prices number’’ test individually to each Administration will also be required to for consumers, individual industries, industry to determine if certification is consult with the Service if its activities Federal, State, or local government appropriate. The area designated as may affect designated critical habitat. agencies, or geographic regions; and (c) critical habitat is small, less than 30 ha However, the Service believes this will does not have significant adverse effects (74 ac), and we have identified fewer result in minimal additional regulatory on competition, employment, than a half-dozen landowners. The burden on the agency and its applicant investment, productivity, innovation, or small scale of the designation ensures or because consultation would already the ability of U.S.-based enterprises to that the ‘‘substantial number of small be required due to the presence of the compete with foreign-based enterprises. entities’’ threshold of the Regulatory listed species. Consultation to avoid the As discussed in the draft economic Flexibility Act will not be met. The five destruction or adverse modification of analysis, no small entities as defined by primary landowners include the critical habitat would be incorporated SBREFA will potentially be affected by following: Humboldt County, which into the existing consultation process the designation of critical habitat. owns Kneeland Airport and Mountain and trigger only minimal additional Proposed and final rules designating View Road; State of California, which regulatory impacts beyond the duty to critical habitat for listed species are owns the Kneeland helictack base; avoid jeopardizing the species because issued under the authority of the Pacific Lumber Company, and two of this species limited distribution and Endangered Species Act of 1973, as private landowners. available habitat. amended (16 U.S.C. 1531 et seq.). The economic analysis identified the Should the airport expansion or Competition, employment, investment, Kneeland Airport improvement project another federally funded, permitted, or productivity, innovation, or the ability as the activity most likely to be affected implemented project be proposed that of U.S.-based enterprises to compete by this rulemaking. The analysis may affect designated critical habitat, with foreign-based enterprises are not estimated that a future section 7 we will work with the Federal action affected by this action and will not be consultation could cost all involved agency and any applicant, through affected by the final rule designating parties a total of $20,300 and that likely section 7 consultation, to identify ways critical habitat for this species. mitigation could cost about $113,000. to implement the proposed project Therefore, we anticipate that this final Kneeland Airport is owned by while minimizing or avoiding any rule will not place significant additional Humboldt County, which has a adverse effect to the species or critical burdens on any entity. population of approximately 126,000. habitat. In our experience, the vast Because SBREFA defines a ‘‘small majority of such projects can be Executive Order 13211 government jurisdiction’’ as successfully implemented with at most On May 18, 2001, the President issued ‘‘governments of cities, counties * * * minor changes that avoid significant Executive Order 13211 on regulations with a population of less than fifty economic impacts to project that significantly affect energy supply,

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distribution, and use. Executive Order California, as critical habitat for Thlaspi which Office of Management and 13211 requires agencies to prepare californicum. The takings implications Budget approval is required under the Statements of Energy Effects when assessment concludes that this final Paperwork Reduction Act. Information undertaking certain actions. Although designation of critical habitat does not collections associated with Act permits this rule is a significant regulatory pose significant takings implications for are covered by an existing OMB action under Executive Order 12866, it lands within or affected by the approval, and are assigned clearance is not expected to significantly affect designation of critical habitat for T. No. 1018–0094, with an expiration date energy supplies, distribution, or use. californicum. A copy of this assessment of July 31, 2004. The Service may not Therefore, this action is not a significant is available by contacting the Arcata conduct or sponsor, and a person is not energy action and no Statement of Fish and Wildlife Office (see ADDRESSES required to respond to, a collection of Energy Effects is required. The primary section). information unless it displays a land uses within designated critical Federalism currently valid OMB control number. habitat include small county airport facilities, CDFFP helitack base, grazing, In accordance with Executive Order National Environmental Policy Act and unforested lands surrounding 13132, this rule does not have timber lands. Significant energy significant Federalism effects. A The Service has determined that it production, supply, and distribution Federalism assessment is not required. does not need to prepare an facilities are not included within In keeping with Department of the Environmental Assessment or an designated critical habitat. Therefore, Interior and Department of Commerce Environmental Impact Statement as this action does not represent a policies, we requested information from, defined by the National Environmental significant action affecting energy and coordinated development of this Policy Act of 1969 (NEPA) in production, supply, and distribution critical habitat designation with, connection with regulations adopted facilities; and no Statement of Energy appropriate State resource agencies in pursuant to section 4(a) of the Effects is required. Because of this California. We will continue to Endangered Species Act. The Service species restricted range and the limited coordinate any future changes in the published a notice outlining its reasons amount of suitable habitat, any designation of critical habitat for for this determination in the Federal consultation required pursuant to Thlaspi californicum with the Register on October 25, 1983 (48 FR section 7 of the Act by a Federal agency appropriate State agencies. Since T. 49244). This final designation does not undertaking an action in this area would californicum only occurs distributed constitute a major Federal action likely be triggered by the listing of the over an extremely limited area, the significantly affecting the quality of the species and not solely by this designation of critical habitat imposes human environment. designation of critical habitat. few, if any, additional restrictions to those currently in place and therefore Government-to-Government Unfunded Mandates Reform Act (2 has little incremental impact on State Relationship With Tribes U.S.C. 1501 et seq.) and local governments and their In accordance Secretarial Order 3206, In accordance with the Unfunded activities. The designation may provide Mandates Reform Act (2 U.S.C. 1501 et some benefit to these governments in ‘‘American Indian Tribal Rights, seq.): that the areas essential to the Federal-Tribal Trust Responsibilities (a) This rule, as designated, will not conservation of the species are more and the Endangered Species Act’’ June ‘‘significantly or uniquely’’ affect small clearly defined and the primary 5, 1997), with the President’s governments. A Small Government constituent elements of the habitat memorandum of April 29, 1994, Agency Plan is not required. Small necessary to the conservation of the ‘‘Government-to-Government Relations governments will only be affected to the species are specifically identified. While with Native American Tribal extent that they must ensure that any this does not alter where and what Governments’’ (59 FR 22951), Executive programs involving Federal funds, federally sponsored activities may Order 13175, and the Department of the permits or other authorized activities occur, it may assist these local Interior’s manual at 512 DM 2, we will not adversely affect the critical governments in long-range planning readily acknowledge our responsibility habitat. In our economic analysis, we rather than having to wait for case-by- to communicate meaningfully with found the direct and indirect costs case section 7 consultations to occur. recognized Federal Tribes on a associated with critical habitat government-to-government basis. We designation to be small in relation to Civil Justice Reform have determined that there are no Tribal any small governments potentially In accordance with Executive Order lands essential for the conservation of affected. 12988, the Office of the Solicitor has Thlaspi californicum because they do (b) This rule will not produce a determined that this rule does not not support the species, nor do they Federal mandate on State, local, or tribal unduly burden the judicial system and provide essential habitat. Therefore, governments or the private sector of meets the requirements of sections 3(a) critical habitat for T. californicum has $100 million or greater in any year, that and 3(b)(2) of the Order. We designate not been designated on Tribal lands. is, it is not a ‘‘significant regulatory critical habitat in accordance with the action’’ under the Unfunded Mandates provisions of the Act. The rule uses References Cited Reform Act. standard property descriptions and A complete list of all references cited identifies the primary constituent Takings in this final rule is available upon elements within the designated areas to request from the Arcata Fish and In accordance with Executive Order assist the public in understanding the Wildlife Office (see ADDRESSES section). 12630 (‘‘Government Actions and habitat needs of Thlaspi californicum. Interference with Constitutionally Author Protected Private Property Rights’’), we Paperwork Reduction Act of 1995 (44 have analyzed the potential takings U.S.C. 3501 et seq.) The primary author of this document implications of designating 30 ha (74 ac) This rule does not contain any new or is Robin Hamlin (see ADDRESSES of lands in Humboldt County, revised information collections for section).

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List of Subjects in 50 CFR Part 17 Code of Federal Regulations, as set forth 2. In § 17.12(h) revise the entry for Endangered and threatened species, below: Thlaspi californicum under ‘‘FLOWERING PLANTS’’ to read as Exports, Imports, Reporting and PART 17—[AMENDED] recordkeeping requirements, and follows: Transportation. 1. The authority citation for part 17 § 17.12 Endangered and threatened plants. continues to read as follows: Regulation Promulgation * * * * * Authority: 16 U.S.C. 1361–1407; 16 U.S.C. Accordingly, we amend part 17, 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– (h) * * * subchapter B of chapter I, title 50 of the 625, 100 Stat. 3500, unless otherwise noted.

Species Spe- Historic range Family Status When listed Critical cial Scientific name Common name habitat rules

FLOWERING PLANTS

****** * Thlaspi californicum ...... Kneeland Prairie penny- U.S.A. (CA) ...... Brassica- E 684 17.96(a) NA cress. ceae — Mustard

*******

3. Amend § 17.96(a) by adding an for space and water (both above and serpentine sites, and support entry for Thlaspi californicum in below ground) and light is reduced, populations of pollinators and seed alphabetical order under Brassicaceae to compared to the surrounding habitats. dispersal organisms. read as follows: Known associated species include the (3) Existing features and structures following: Festuca rubra (red fescue), within the boundaries of mapped § 17.96 Critical habitat—plants. Koeleria macrantha (junegrass), Elymus critical habitat units, such as buildings, (a) Flowering plants. glaucus (blue wildrye), Eriophyllum roads, airports, and other paved areas * * * * * lanatum (woolly sunflower), Lomatium will not contain one or more of the Family Brassicaceae: Thlaspi macrocarpum (large-fruited lomatium), primary constituent elements. Federal californicum (Kneeland Prairie penny- and Viola hallii (Hall’s violet); actions limited to those areas, therefore, cress) (iii) Serpentine substrates that contain would not trigger a section 7 (1) A critical habitat unit is depicted 15 percent or greater (by surface area) of consultation, unless they affect the for Humboldt County, California, on the exposed gravels, cobbles, or larger rock species and/or primary constituent map below. fragments, which may contribute to elements in adjacent critical habitat. (2) The primary constituent elements alteration of factors of microclimate, (4) Critical habitat unit. Humboldt of critical habitat for Thlaspi including surface drainage and moisture County, California. californicum are the habitat components availability, exposure to wind and sun, (i) From USGS. 1:24,000 scale Iaqua that provide: and temperature; and Buttes quadrangle, land bounded by the (i) Thin rocky soils that have (iv) Prairie grasslands and oak following UTM Zone 10 NAD27 developed on exposures of serpentine woodlands located within 30 m (100 ft) coordinate pairs (East, North): 421800, substrates; of the serpentine outcrop area on 4507300; 422100, 4507800; 422100, (ii) Plant communities that support a Ashfield Ridge. Protection of these 4507300; 422200, 4507600; 421700, relatively sparse assemblage of habitats is essential to the conservation 4507400; 421800, 4507500; 421600, serpentine indicator, or facultative- of Thlaspi californicum in that it will 4507500; 421800, 4507900; 421800, serpentine indicator, species, including provide connectivity among the 4507800; 421900, 4507900 various native forbs and grasses, but not serpentine sites, help to maintain the (ii) Map follows: trees or shrubs, such that competition hydrologic and edaphic integrity of the BILLING CODE 4310–55–P

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* * * * * Management Act. Regulations governing Regional Administrator is establishing a Dated: September 30, 2002. fishing by U.S. vessels in accordance directed fishing allowance of 6,009 mt, Craig Manson, with the FMP appear at subpart H of 50 and is setting aside the remaining 50 mt CFR part 600 and 50 CFR part 679. as bycatch to support other anticipated Assistant Secretary for Fish and Wildlife and Parks. Within any fishing year, underage or groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional [FR Doc. 02–25371 Filed 10–8–02; 8:45 am] overage of a seasonal allowance may be added to or subtracted from subsequent Administrator finds that this directed BILLING CODE 4310–55–P seasonal allowances in a manner to be fishing allowance will soon be reached. determined by the Administrator, Consequently, NMFS is prohibiting DEPARTMENT OF COMMERCE Alaska Region, NMFS (Regional directed fishing for pollock in Statistical Administrator), provided that the sum Area 610 of the GOA. National Oceanic and Atmospheric of the revised seasonal allowances does Maximum retainable bycatch amounts Administration not exceed 30 percent of the annual may be found in the regulations at TAC apportionment for the Central and § 679.20(e) and (f). Western Regulatory Areas in the GOA 50 CFR Part 679 Classification (§ 679.20(a)(5)(ii)(C)). For 2002, 30 [Docket No. 011218304–1304–01; I.D. 092602F] percent of the annual TAC for the This action responds to the best Central and Western Regulatory Areas is available information recently obtained Fisheries of the Exclusive Economic 15,187 metric tons (mt). For 2002, the from the fishery. The Assistant Zone Off Alaska; Pollock in Statistical Regional Administrator has determined Administrator for Fisheries, NOAA, Area 610 of the Gulf of Alaska that within each area for which a finds good cause to waive the seasonal allowance is established, any requirement to provide prior notice and AGENCY: National Marine Fisheries overage or underage of harvest from the opportunity for public comment Service (NMFS), National Oceanic and previous season(s) shall be subtracted pursuant to the authority set forth at 5 Atmospheric Administration (NOAA), from or added to the seasonal allowance U.S.C. 553(b)(B) as such requirement is Commerce. of the following season provided that contrary to the public interest. This ACTION: Closure. the resulting sum of seasonal requirement is contrary to the public allowances in the Central and Western interest as it would delay the closure of SUMMARY: NMFS is prohibiting directed Regulatory Areas does not exceed the fishery, lead to exceeding the TAC, fishing for pollock in Statistical Area 15,187 mt in any single season. The D and therefore reduce the public’s ability 610 of the Gulf of Alaska (GOA). This season allowance of the pollock TAC in to use and enjoy the fishery resource. action is necessary to prevent exceeding Statistical Area 610 of the GOA is 5,949 the D season allowance of the pollock The Assistant Administrator for mt as established by an emergency rule Fisheries, NOAA, also finds good cause total allowable catch (TAC) for implementing 2002 harvest Statistical Area 610 of the GOA. to waive the 30–day delay in the specifications and associated effective date of this action under 5 DATES: Effective 1200 hrs, Alaska local management measures for the U.S.C. 553(d)(3). This finding is based time (A.l.t.), October 5, 2002, until 2400 groundfish fisheries off Alaska (67 FR upon the reasons provided above for hrs, A.l.t., December 31, 2002. 956, January 8, 2002 and 67 FR 34860, waiver of prior notice and opportunity FOR FURTHER INFORMATION CONTACT: May 16, 2002). The C season allowance for public comment. Mary Furuness, 907–586–7228, or in Statistical Area 610 was under This action is required by section [email protected]. harvested by 110 mt, therefore the 679.20 and is exempt from review under SUPPLEMENTARY INFORMATION: NMFS Regional Administrator, in accordance Executive Order 12866. with § 679.20(a)(5)(ii)(C), is increasing manages the groundfish fishery in the Authority: 16 U.S.C. 1801 et seq. GOA exclusive economic zone the D season pollock TAC in Statistical according to the Fishery Management Area 610 by 110 mt to 6,059 mt. Dated: October 4, 2002. Plan for Groundfish of the Gulf of In accordance with § 679.20(d)(1)(i), Virginia M. Fay, Alaska (FMP) prepared by the North the Regional Administrator, has Acting Director, Office of Sustainable Pacific Fishery Management Council determined that the D season allowance Fisheries, National Marine Fisheries Service. under authority of the Magnuson- of the pollock TAC in Statistical Area [FR Doc. 02–25709 Filed 10–4–02; 3:21 pm] Stevens Fishery Conservation and 610 will soon be reached. Therefore, the BILLING CODE 3510–22–S

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