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* * * * * SUPPLEMENTARY INFORMATION: observable above-ground plants (Given 1994). The number and location of Dated: March 7, 2003. Background Craig Manson, standing plants in a population with a Sidalcea keckii (Keck’s persistent seed bank may vary annually Assistant Secretary for Fish and Wildlife and checkermallow) is an annual herb of the Parks. due to a number of factors, including mallow family (Malvaceae). The species the amount and timing of rainfall, [FR Doc. 03–6133 Filed 3–17–03; 8:45 am] grows 15 to 33 centimeters (cm) (6 to 13 temperature, soil conditions, and the BILLING CODE 4310–55–C inches (in)) tall, with slender, erect extent and nature of the seed bank. As stems that are hairy along their entire the depository from which each new length. Leaves towards the base of the DEPARTMENT OF THE INTERIOR generation of plants must grow, such plant have a roughly circular outline, seed banks are extremely important for Fish and Wildlife Service and seven to nine shallow lobes an annual species’ long-term survival in arranged somewhat like the fingers of a an area, and may maintain a population 50 CFR Part 17 hand (palmate). Leaves farther up the through years in which few or no above- plant have fewer lobes which are more ground plants can grow or survive RIN 1018-AG93 deeply divided. Both types of leaves (Baskin and Baskin 1978). also have irregular serrations at their The primary pollinators of Sidalcea Endangered and Threatened Wildlife margins forming ‘‘teeth.’’ The plant keckii are unknown, but two related and Plants; Final Designation of flowers in April and early May, California species of Sidalcea (S. Critical Habitat for Sidalcea keckii producing five petalled flowers that are oregana ssp. spicata and S. malviflora (Keck’s checkermallow) either solid pink or pink with a maroon ssp. malviflora) are pollinated primarily AGENCY: Fish and Wildlife Service, center. Petals are 1 to 2 cm (0.4 to 0.8 by various species and families of Interior. in) long, and are often shallowly solitary bees, bumble bees, and bee flies ACTION: Final rule. notched at their outermost margins. (Ashman and Stanton 1991; Graff 1999). Below the petals is a smaller calyx Many bees of the solitary bee genus SUMMARY: We, the U.S. Fish and (cuplike structure) formed by five Diadasia specialize in collecting pollen Wildlife Service (Service), designate narrow green sepals (modified leaves). solely from members of the Malvaceae critical habitat pursuant to the Each sepal is 8 to 11 millimeters (mm) family (Service 1998). Endangered Species Act of 1973, as (0.3 to 0.4 in) long, and may have a Sidalcea keckii is endemic to amended (Act), for Sidalcea keckii maroon line running down its center. California and grows in relatively open (Keck’s checkermallow). Approximately Below the calyx are bracts (modified areas on grassy slopes of the Sierra 438 hectares (ha) (1,085 acres (ac)) are leaflike structures), which are much foothills in Fresno and Tulare counties. designated in California, consisting of shorter than the sepals and are either It is associated with serpentine soils three separate units: one unit in Fresno undivided or divided into two (Kirkpatrick 1992; Cypher 1998), which County, 206 ha (510 ac), and two units threadlike lobes. Sidalcea keckii is are unusually low in nutrients and high in Tulare County, one of 86 ha (213 ac) distinguished from other members of its in heavy metals. These soil properties and one of 146 ha (362 ac). This critical genus by the maroon lines on its sepals, tend to restrict the growth of many habitat designation provides additional its much shorter bracts, and by stems competing plants (Brooks 1987). As protection under section 7 of the Act which are hairy along their entire length with many serpentine species, S. keckii with regard to actions carried out, (Kirkpatrick 1992; Shevock 1992; Hill appears to compete poorly with densely funded, or authorized by a Federal 1993). growing non-native annual grasses agency. Section 4 of the Act requires us Sidalcea keckii fruit consist of four to (Stebbins 1992; Weiss 1999). to consider economic and other relevant five wedge-shaped sections arranged in The primary reason so much remains impacts when specifying any particular a disk. The sections measure 3 to 4 mm unknown about Sidalcea keckii is that area as critical habitat. We solicited data (0.1 to 0.2 in) across, and each contains after botanists first collected samples and comments from the public on all a single seed (Abrams 1951; Hill 1993; from a site near White River, Tulare aspects of our proposal, including data Cypher 1998). Sections mature and County in 1935, 1938, and 1939 on economic and other impacts of the separate in May, but their methods of (Wiggins 1940; California Natural designation. dispersal, other than gravity, are Diversity Database (CNDDB) 2001), it currently unknown (Cypher 1998). Also was not collected or observed by DATES: This rule becomes effective on unknown are the seeds’ requirements botanists again for over 50 years. A April 17, 2003. for germination (sprouting) in the wild, possible reason for this includes the ADDRESSES: Comments and materials their typical germination dates, and how somewhat vague description of the received, as well as supporting long the seeds remain viable in the soil. White River site (Wiggins 1940). documentation used in the preparation Based on other Malvaceae species, and Searches at the site may also simply of this final rule, will be available for on recent observations of extreme yearly have been conducted during poor years public inspection, by appointment, fluctuations in numbers of above- when few above-ground plants had during the normal business hours at the ground plants, it is likely that S. keckii germinated from the seed bank (S. Hill, Sacramento Fish and Wildlife Office, seeds remain viable for several years in litt., 1997). Now that botanists have U.S. Fish and Wildlife Service, 2800 and form a persistent soil seed bank (W. a better understanding of what Cottage Way, Suite W–2605, Moise as in E. Cypher, Endangered constitutes appropriate habitat for the Sacramento, CA 95825. Species Recovery Program, California species, based on the discovery of FOR FURTHER INFORMATION CONTACT: State University, in litt., 1999; S. Hill, additional sites (see below), it is Kirsten Tarp or Susan Moore, Illinois Natural History Survey, pers. possible that future surveys may Sacramento Fish and Wildlife Office, comm., 2002 ). Persistent seed banks relocate S. keckii at the White River site. U.S. Fish and Wildlife Service consist of all the viable seeds left Initial visits to the site have already (telephone 916/414–6600; facsimile ungerminated in the soil longer than a identified areas of likely habitat (J. 916/414–6710; [email protected] or single growing season, and typically Stebbins, Herbarium Curator, California [email protected]). extend over a much greater area than the State University, pers. comm., 2002).

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Sidalcea keckii was presumed extinct in grazing during months of flowering, species in that NOR, as well as in until it was rediscovered in 1992 at a seed-set, or seed maturation, could subsequent NORs published September site near Mine Hill in Tulare County potentially reduce local population 19, 1997 (62 FR 49398), and October 25, (Stebbins 1992). The Mine Hill viability and thereby affect long term 1999 (64 FR 57533). population contained about 60 plants conservation. The plant’s low On July 28, 1997, we published a growing on private land around a population numbers, particularly at proposed rule to list Sidalcea keckii as serpentine rock outcrop on 20 to 40 Mine Hill, leave it vulnerable to random an endangered species under the Act (62 percent slopes at about 229 meters (m) environmental events such as extreme FR 40325). On June 17, 1999, our failure (750 feet (ft)) in elevation. Associated weather, disease, or insect infestations to issue a final rule and to make a plants included Achyrachaena mollis (Shaffer 1981, 1987; Menges 1991). The critical habitat determination for S. (blow-wives), Bromus madritensis ssp. isolation of S. keckii populations keckii was challenged in Southwest rubens (red brome), Lepidium nitidum exacerbates these vulnerabilities by Center for Biological Diversity, et al., v. (shining peppergrass), Senecio vulgaris reducing the likelihood of U.S. Fish and Wildlife Service, et al. (common groundsel), Plantago erecta recolonization of extirpated (N.D. Cal) (Case No. C99–2992 CRB). On (California plantain), and Silene gallica populations. Inbreeding depression and February 16, 2000, we published a final (windmill pink) (Kirkpatrick 1992; loss of genetic variability may also be rule listing S. keckii as an endangered Cypher 1998). We have received causes for concern in such small species (65 FR 7757). A May 22, 2000, information that the standing isolated populations (Ellstrand and court order, based on a joint stipulation population at Mine Hill may have been Elam 1993). with the plaintiffs, required us to extirpated by conversion of the habitat complete a proposed critical habitat Previous Federal Action to an orange grove (J. Stebbins, in litt., designation by September 30, 2001. The 2002). Much of the area around the Federal action on Sidalcea keckii court extended the deadline to propose original population at Mine Hill remains began when the Secretary of the critical habitat for this species, based on potentially viable however, and may Smithsonian Institution, as directed by a further settlement agreement reached contain a seed bank or standing plants. section 12 of the Endangered Species by the parties. In a consent decree Using habitat information from the Act of 1973, as amended (Act) (16 issued October 2, 2001, the court Mine Hill site, botanists resurveyed a U.S.C. 1531 et seq.), prepared a report required us to complete a proposed location in the Piedras area of Fresno on those native plants considered to be critical habitat designation for S. keckii County where Sidalcea keckii had been endangered, threatened, or extinct in the and certain other species by June 10, documented in 1939, and rediscovered United States. This report (House Doc. 2002, and to issue a final critical habitat the population in 1998 (Service 1997; No. 94–51) was presented to Congress designation for the species by March 10, CNDDB 2001). This population spans a on January 9, 1975, and included S. 2003 (Center for Biological Diversity, et mix of private and Federal land, much keckii as threatened. On July 1, 1975, we al., v. Gale Norton, et al. (D.D.C.) (Case. of which has since been purchased by published a notice in the Federal No. Civ. 01–2063)). Sierra Foothill Conservancy (SFC) to Register (40 FR 27823) accepting the We published a proposed rule for provide a reserve for the plant (SFC report as a petition within the context Sidalcea keckii in the Federal Register 2001). Although initially only 217 of section 4(c)(2) (now section 4(b)(3)) of June 19, 2002 (67 FR 41669). In the plants were found at the site (Service the Act, and of our intention to review proposal, we determined that it was 2000), subsequent surveys have found the status of the plant taxa named in the prudent to designate approximately 438 500 to 1,000 plants in 8 separate patches report. On June 16, 1976, we published hectares (ha) (1,085 acres (ac)), ranging in elevation from 183 to 305 m a proposed rule in the Federal Register consisting of three separate units: one (600 to 1,000 ft) (Cypher 1998; C. Peck, (41 FR 24523) determining unit in Fresno County, 206 ha (510 ac), SFC, in litt., 2002). Associated plants at approximately 1,700 vascular plant and two units in Tulare County, one of this site include Bromus heartaches species to be endangered pursuant to 86 ha (213 ac) and one of 146 ha (362 (soft chess), Dichelostemma capitatum section 4 of the Act. Sidalcea keckii was ac). Publication of the proposed rule (blue dicks), Gilia tricolor (bird’s eye not included on this initial list. opened a 60-day public comment gilia), Trileleia ixioides (pretty face), We addressed the remaining plants period, which closed on August 19, Trileleia laxa (Ithuriel’s spear), from the Smithsonian report in a 2002. On October 31, 2002, we Asclepias sp. (milkweed), and Madia sp. subsequent Notice of Review (NOR) on published a notice announcing the (tarweed) (Cypher 1998). Another December 15, 1980 (45 FR 82479). In reopening of the comment period on the population was discovered near Piedra that NOR, we determined Sidalcea proposal to designate critical habitat for in 2002, but we do not yet have details keckii to be a category 1 candidate S. keckii, and a notice of availability of regarding its exact location (J. Stebbins, species, which we defined as a species the draft economic analysis on the in litt., 2002). for which we had enough information proposed determination (67 FR 66378). Sidalcea keckii is threatened by urban on biological vulnerability and threats This second public comment period development, competition from non- to support preparation of a listing closed on December 2, 2002. native grasses, agricultural land proposal. We published updates of the conversion, and random events (S. Hill, plant candidate lists in NORs dated Summary of Comments and pers. comm., 2002; C. Peck, in litt., September 27, 1985 (50 FR 39526), Recommendations 2002; Service 2000). Cattle grazing at the February 21, 1990 (55 FR 6184), and In the June 19, 2002, proposed critical current level does not appear to be September 30, 1993 (58 FR 51144), each habitat designation (67 FR 41669), we detrimental, and may reduce time maintaining S. keckii as a category requested all interested parties to encroachment by non-native grasses (C. 1 species. In the NOR published submit comments on the specifics of the Peck, in litt., 2002; Weiss 1999). Cattle February 28, 1996 (61 FR 7596), we proposal including information related have been observed to cause some discontinued the use of different to biological justification, economics, damage to S. keckii by eating or categories of candidates, and defined proposed critical habitat boundaries, trampling it, although the damage was ‘‘candidate species’’ as those meeting and proposed projects. The initial 60- barely noticeable a week later (Cypher the definition of former category 1. We day comment period closed on August 1998). However, unmanaged increases maintained S. keckii as a candidate 19, 2002. The comment period was

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reopened from October 31, 2002, to mapped with a Geographic Positioning approximately 2 ha (5 ac)) was December 2, 2002 (67 FR 66378), to System (GPS) unit to precisely map the inadvertently eliminated when the final allow for additional comments on the occurrence. If the landowner will not proposed critical habitat boundaries proposed designation, and comments on allow access to the property, it is were delimited using the Universal the draft economic analysis of the recommended that the critical habitat Transverse Mercator (UTM) grid. Under proposed critical habitat. boundary be extended to include the the Act and the Administrative We contacted all appropriate Federal, adjacent Centerville clay soils. Procedure Act (5 U.S.C. 553), we are State, and local agencies, elected Our Response: Because we are under required to allow the public an officials, scientific organizations, and a settlement agreement to complete a opportunity to comment on the other interested parties and invited final rule by March 10, 2003, we do not proposed rulemaking. Therefore, them to comment. In addition, we have the option of postponing the because this new area was not included invited public comment through the designation of critical habitat in order to in the proposed rule, we are not publication of legal notices in the Tulare determine the location of the Sidalcea including it in the final rule. Although Advance Register and the Fresno Bee on keckii population more precisely with a this area was not included in the critical June 27, 2002. We provided notification GPS unit. We disagree with extending habitat proposal, it may be important to of the draft economic analysis to all the critical habitat boundary to the the recovery of Sidalcea keckii and interested parties. This was adjacent Centerville clay soils because could be included in recovery activities accomplished through letters and news most of the adjacent Centerville clay in the future. releases faxed and/or mailed to affected soils are already in agricultural fields or elected officials, media outlets, local orchards and would be unlikely to Summary of Changes From the jurisdictions, and interest groups. We contribute to the conservation of S. Proposed Rule also posted the proposed rule and draft keckii. Based on a review of the comments economic analysis and associated The Mine Hill Unit we proposed received on the proposed determination material on our Sacramento Fish and incorporates both the area mapped by of critical habitat, we reevaluated our Wildlife Office internet site following John Stebbins and the area mapped by proposed designation and made minor their release on June 19, 2002, and Karen Kirkpatrick. Although it is true changes to the text in the background October 31, 2002, respectively. that the area mapped by Karen section of the rule. No changes were We received individually written Kirkpatrick is closer to the boundary of made to the unit boundaries delimiting letters from two parties, including one the Centerville clay, it is still within the the areas determined to be essential for peer reviewer. Both comments were area mapped as Coarsegold Series soils. the conservation of Sidalcea keckii. The neutral regarding the designation of Issue 2: Both commenters mentioned unit boundaries as depicted in this final critical habitat. We reviewed both that the population of Sidalcea keckii at rule encompass 438 ha (1,085 ac). comments received for substantive the Mine Hill Unit may have been Critical Habitat issues and new information regarding extirpated by citrus groves. One of the critical habitat and Sidalcea keckii. The commenters stated that, considering the Section 3 of the Act defines critical comments were either incorporated very limited range of the species, none habitat as—(i) the specific areas within directly into the final rule or are of the three sites is expendable, and the geographical area occupied by a addressed in the following summary. there is a good possibility that areas of species, at the time it is listed in We received no comments regarding the natural land may remain on the accordance with the Act, on which are draft economic analysis. appropriate soil types within or adjacent found those physical or biological to the boundaries of the proposed features (I) essential to the conservation Peer Review critical habitat. of the species, and (II) that may require In accordance with our peer review Our Response: Our information about special management considerations or policy published on July 1, 1994 (59 FR the status of the population at the Mine protection; and (ii) specific areas 34270), we solicited independent Hill site is inconclusive. The standing outside the geographic area occupied by opinions from three knowledgeable population at Mine Hill may have been a species at the time it is listed, upon individuals with expertise in one or extirpated by conversion of the habitat a determination that such areas are several fields, including familiarity with to an orange grove. We do not know essential for the conservation of the the species, familiarity with the how much habitat may have been species. ‘‘Conservation’’ means the use geographic region that the species converted. We believe that much of the of all methods and procedures that are occurs in, and familiarity with the habitat around the original population necessary to bring an endangered or a principles of conservation biology. One at Mine Hill remains potentially viable threatened species to the point at which of the three peer reviewers responded, and may contain a seed bank or listing under the Act is no longer and provided us with comments which standing plants. necessary. were summarized in the following Issue 3: The location of the Critical habitat receives protection section and incorporated into the final population mapped at White River may under section 7 of the Act through the rule. be misplaced. The CNDDB gives the prohibition against destruction or Issue 1: Critical habitat identified at elevation as 427 m (1,400 ft); however adverse modification of critical habitat the Mine Hill Unit may be misplaced. the original description of the site gives with regard to actions carried out, John Stebbins and Karen Kirkpatrick, the elevation as 380 m (1,247 ft). Given funded, or authorized by a Federal the two individuals who found the the uncertainty of the precise location of agency. Section 7 also requires population, mapped the population in any remaining seed bank, the boundary conferences on Federal actions that are slightly different locations, one of which of the critical habitat proposed at White likely to result in the destruction or was mapped much closer to the River should extend all the way to the adverse modification of proposed Centerville clay soils. In addition, John edge of the Cibo soils. critical habitat. Stebbins’ collection notes stated the soil Our Response: We had originally In our regulations at 50 CFR 402.02, type was Centerville clay. This included the referenced Cibo soil area as we define destruction or adverse commenter recommended that the critical habitat, but a small portion of modification as ‘‘a direct or indirect population be visited in the spring and the Cibo soil area (less than alteration that appreciably diminishes

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the value of critical habitat for both the species. Our regulations (50 CFR projects affecting listed species outside survival and recovery of a listed species. 424.12(e)) also state that, ‘‘The Secretary their designated critical habitat areas Such alterations include, but are not shall designate as critical habitat areas may still result in jeopardy findings in limited to: alterations adversely outside the geographic area presently some cases. Similarly, critical habitat modifying any of those physical or occupied by the species only when a designations made on the basis of the biological features that were the basis designation limited to its present range best available information at the time of for determining the habitat to be would be inadequate to ensure the designation will not control the critical.’’ However, in a March 15, 2001, conservation of the species.’’ direction and substance of future decision of the United States Court of Section 4(b)(2) of the Act requires that recovery plans, habitat conservation Appeals for the Fifth Circuit (Sierra we take into consideration the economic plans, or other species conservation Club v. U.S. Fish and Wildlife Service et impact, and any other relevant impact, planning efforts if new information al., 245 F.3d 434), the Court found our of specifying any particular area as available to these planning efforts calls definition of destruction or adverse critical habitat. We may exclude areas for a different outcome. modification to be invalid. In response from critical habitat designation when Methods to this decision, we are reviewing the the benefits of exclusion outweigh the regulatory definition of adverse benefits of including the areas within As required by section 4(b)(2) of the modification in relation to the critical habitat, provided the exclusion Act and regulations at 50 CFR 424.12, conservation of the species. will not result in extinction of the we used the best scientific information Aside from the added protection that species. available to determine areas that contain may be provided under section 7, the Our Policy on Information Standards the physical and biological features that Act does not provide other forms of Under the Endangered Species Act, are essential for the conservation of protection to lands designated as critical published on July 1, 1994 (59 FR Sidalcea keckii. This included habitat. Because consultation under 34271), provides criteria, establishes information from our own documents section 7 of the Act does not apply to procedures, and provides guidance to on S. keckii and related species; the activities on private or other non- ensure that our decisions represent the CNDDB (2001); peer-reviewed journal Federal lands that do not involve a best scientific and commercial data articles and book excerpts regarding S. Federal nexus, critical habitat available. It requires that our biologists, keckii and related species, or regarding designation would not afford any to the extent consistent with the Act and more generalized issues of conservation additional regulatory protections under with the use of the best scientific and biology; unpublished biological the Act. commercial data available, use primary documents regarding S. keckii or related Critical habitat also provides non- and original sources of information as species; site visits, and discussions with regulatory benefits to the species by the basis for recommendations to botanical experts. informing the public and private sectors designate critical habitat. When We compared geological and of areas that are important for species determining which areas are critical ecological characteristics of the various recovery, and where conservation habitat, a primary source of information locations of the plant by using actions would be most effective. should be the listing rule for the species. information from the above sources as Designation of critical habitat can help Additional information may be obtained well as geographic information system focus conservation activities for a listed from a recovery plan, articles in peer- (GIS) coverages of documented Sidalcea species by identifying areas that contain reviewed journals, conservation plans keckii population locations (CNDDB the physical and biological features developed by States and counties, 2001); soil survey maps (U.S. Soil essential for the conservation of that scientific status surveys and studies, Conservation Service (SCS) 1971, 1982; species, and can alert the public as well and biological assessments or other U.S. Department of Agriculture, Natural as land-managing agencies to the unpublished materials. Resource Conservation Service (NRCS) importance of those areas. Critical Section 4 of the Act requires that we 2001); aerial photographs (CNES/SPOT habitat also identifies areas that may designate critical habitat based on what Image Corporation (SPOT) 2001); require special management we know at the time of designation. topological features (United States considerations or protection, and may Habitat is often dynamic, and species Geological Survey (USGS) 1990); help provide protection to areas where may move from one area to another over features of underlying rock (California significant threats to the species have time. Furthermore, we recognize that Department of Conservation (CDC) been identified, by helping people to designation of critical habitat may not 2000) and vegetation cover (USGS avoid causing accidental damage to include all of the habitat areas that may 1990). We also examined geological such areas. eventually be determined to be maps not available on GIS (California In order to be included in a critical necessary for the recovery of the Division of Mines and Geology (CDMG) habitat designation, the habitat must species. For these reasons, critical 1991, 1992). first be ‘‘essential to the conservation of habitat designations do not signal that The Piedra and the Mine Hill critical the species.’’ Critical habitat habitat outside the designation is habitat units are occupied by both designations identify, to the extent unimportant or may not be required for above-ground plants and seed banks, known and using the best scientific and recovery. Areas that support newly depending on the time of year (i.e., commercial data available, habitat areas discovered populations in the future, plants are not observable above-ground that provide at least one of the physical but are outside the critical habitat all year). Although above-ground plants or biological features essential to the designation, will continue to be subject have not been observed on the White conservation of the species (primary to conservation actions implemented River unit since the 1930s, a complete constituent elements, as defined at 50 under section 7(a)(1) of the Act, and to survey has not been done due to the CFR 424.12(b)). Section 3(5)(C) of the the regulatory protections afforded by lack of access to lands in private Act states that not all areas that can be the section 7(a)(2) jeopardy standard ownership. ‘‘Occupied’’ is defined here occupied by a species should be and the section 9 prohibitions, as as any area with above-ground Sidalcea designated as critical habitat unless the determined on the basis of the best keckii plants or a S. keckii seed bank of Secretary determines that all such areas available information at the time of the indefinite boundary. Current surveys are essential to the conservation of the action. Federally funded or assisted need not have identified above-ground

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individuals for the area to be considered Much of what is known about the recovery of this taxon depends not only occupied because plants may still exist specific physical and biological on protecting it in the limited area that at the site as part of the seed bank requirements of Sidalcea keckii is it currently occupies, but also on (Given 1994). All occupied sites contain described in the Background section of providing the opportunity to expand its some or all of the primary constituent this final rule. The designated critical distribution by protecting currently elements and are essential to the habitat is designed to provide sufficient unoccupied habitat that contains the conservation of the species, as described habitat to maintain self-sustaining necessary primary constituent elements below. populations of S. keckii throughout its within its historic range. Each of the critical habitat units likely range and allow for the expansion of To help achieve our goal of includes areas that are unoccupied by populations in order to help reach the conservation of Sidalcea keckii, we are Sidalcea keckii. ‘‘Unoccupied’’ is primary goal of conservation, and to including the White River site, despite defined here as an area that contains no provide those habitat components the fact that S. keckii has not been above-ground S. keckii plants and that essential for the conservation of the documented there in recent years. The is unlikely to contain a viable seed species. These habitat components White River population is the type bank. Determining the specific areas provide for: (1) individual and location where the plant was originally that this taxon occupies is difficult population growth, including sites for discovered and described from and still because, depending on the climate and germination, pollination, reproduction, is documented to contain the primary the natural variations in habitat pollen and seed dispersal, and seed constituent elements that would support conditions, the extent of the dormancy; (2) areas that allow gene flow the species. It is one of the extremely distributions may either shrink and and provide connectivity or linkage few locations where S. keckii has ever disappear, or if there is a residual seed within larger populations; (3) areas that been observed and may be occupied by bank present, enlarge and cover a more provide basic requirements for growth, a seed bank. We have evidence from the extensive area. Because it is logistically such as water, light, and minerals; and Piedra site, where S. keckii was difficult to determine how extensive the (4) areas that support populations of undocumented from 1939 until its seed bank is at any particular site, and pollinators and seed dispersal rediscovery in 1998 (Cypher 1998; because above-ground plants may or organisms. CNDDB 2001), that such rediscoveries may not be present in all patches within We believe the long-term conservation are possible for S. keckii. The Piedra site a site every year, we cannot quantify in of Sidalcea keckii is dependent upon supports the largest known S. keckii any meaningful way what proportion of the protection of existing population population, with 500 to 1,000 plants each critical habitat unit may actually sites and the maintenance of ecological when last surveyed (Cypher 1998). Even be occupied by S. keckii. Therefore, functions within these sites, including if the species is not rediscovered at the patches of unoccupied habitat are connectivity between colonies (i.e., White River site, we still believe the site probably interspersed with patches of groups of plants within sites) within is essential to the conservation of the occupied habitat in each unit. The close geographic proximity to facilitate species because it is the most inclusion of unoccupied habitat in our pollinator activity and seed dispersal. appropriate site for a reestablishment critical habitat units reflects the The areas we are designating as critical effort. The combination of limited range, dynamic nature of the habitat and the habitat provide some or all of the habitat few populations, and restricted habitat life history characteristics of this taxon. components essential for the makes S. keckii susceptible to extinction Unoccupied areas provide areas into conservation of S. keckii. Based on the or extirpation due to random events, which populations might expand, best available information at this time, such as fire, disease, or other provide connectivity or linkage between the primary constituent elements of occurrences (Shaffer 1981, 1987; colonies within a unit, and support critical habitat for S. keckii are: Primack 1993, Meffe and Carroll 1994). populations of pollinators and seed (1) Minimally shaded annual Such events are a concern when the dispersal organisms. Both occupied and grasslands in the foothills of the Sierra number of populations or geographic unoccupied areas that are proposed as Nevada Mountains containing open distribution of a species are severely critical habitat are essential to the patches in which competing vegetation limited, as is the case with S. keckii. conservation of the species. is relatively sparse; and Establishment of a third location for S. (2) Serpentine soils or other soils that keckii is likely to prove important in Primary Constituent Elements tend to restrict competing vegetation. reducing the risk of extinction due to In accordance with section 3(5)(A)(i) such catastrophic events. of the Act and regulations at 50 CFR Criteria Used to Identify Critical Despite the association of Sidalcea 424.12, in determining which areas to Habitat keckii with serpentine soils (Kirkpatrick propose as critical habitat, we consider We identified critical habitat areas 1992; Cypher 1998), only a portion of S. those physical and biological features essential to the conservation of Sidalcea keckii plants at the Piedra site grow on (primary constituent elements) that are keckii in the three primary locations soil identified by SCS maps as being essential to the conservation of the where it currently occurs or has been serpentine derived (the soil, Fancher species and that may require special known to occur: the Piedra area of extremely stony loam) (SCS 1971; NRCS management considerations or Fresno County, the Mine Hill area of 2001). Other patches at Piedra grow on protection. These include, but are not Tulare County, and near White River in what SCS maps indicate are Cibo clays, limited to: space for individual and Tulare County. We are designating while the Mine Hill population of S. population growth and for normal sufficient critical habitat at each site to keckii grows in an area mapped as behavior; food, water, air, light, maintain self-sustaining populations of Coarsegold rock outcrop complex minerals or other nutritional or S. keckii at each of these locations. (NRCS 2001). Neither of these latter two physiological requirements; cover or During the development of this rule, soil types normally derive from shelter; sites for germination or seed we considered the role of unoccupied serpentine rock (SCS 1971, 1982), dispersal; and habitats that are protected habitat in the conservation of Sidalcea although the underlying geology may from disturbance or are representative of keckii. Due to the historic loss of the contain it. Geologic maps, for example, the historic geographical and ecological habitat that supports this species, we show the Cibo soils of the Piedra distributions of a species. believe that future conservation and population straddling an arm of

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underlying serpentine rock (CDMG habitats may exist within the same more overgrown or which were not 1991; CDC 2000). The soils may, combination of soil and underlying grassland and, therefore, not suitable therefore, in fact be derived from such rock. habitat for the species. rock or include pockets of soil derived Mapping In order to provide determinable legal from such rock, or the amount of descriptions of the critical habitat We delineated the critical habitat serpentine rock may be too small to be boundaries, we then used an overlayed units by creating data layers in a GIS mapped (E. Russell, NRCS, pers. comm., 100-meter grid to establish UTM North format. First, we identified the locations 2002). Available geologic maps fail to American Datum of 1983 (NAD 83) of the Sidalcea keckii populations using show any serpentine rock in the vicinity coordinates which, when connected, information from the CNDDB (2001) and of the type locality White River provided the critical habitat unit published and unpublished documents population (CDMG 1992; Jennings 1977; boundaries. We include the legal from those who located the known CDC 2000), but instead show that the description derived from the UTM populations (Kirkpatrick 1992; Stebbins area contains Cibo clays. However, Cibo coordinates for each unit in the 1992). In the case of the Piedra soils have an intrinsic tendency to dry Regulation Promulgation section, below. out, harden, and form deep cracks population, where S. keckii grew in during the summer which can more than one patch, we identified the In designating critical habitat, we discourage the growth of some plants (E. locations and approximate dimensions made an effort to avoid developed areas, Russell, pers. comm., 2002). Hence, of the various patches as well, based on such as housing developments and these soils would limit vegetation information provided by SFC (C. Peck, agricultural fields, that are unlikely to competition in favor of S. keckii. in litt., 2002). We mapped populations contribute to the conservation of Based on available soils and geologic or patch locations from all sites on Sidalcea keckii. However, we did not maps, the Coarsegold soils of the Mine USGS 7.51 quadrangle topological maps map critical habitat in sufficient detail Hill population do not overlie (USGS 1990) to obtain information on to exclude all developed areas, or other serpentine rock, nor are they elevation, slope, and recognizable lands unlikely to contain the primary intrinsically restrictive to plant growth surface features. We then used soil constituent elements essential for the (CDMG 1991; Jennings 1977; SCS 1982; survey maps (NRCS 2001) to restrict conservation of S. keckii. Areas within CDC 2000; E. Russell, pers. comm., potential critical habitat to the the boundaries of the mapped units, 2002). The botanists who discovered the boundaries of the basic soil types on such as buildings, roads, and paved population, however, characterized the which the populations grow. In areas areas will not contain one or more of the site as a ‘‘serpentine rock outcrop’’ where the presence of S. keckii could primary constituent elements. Federal (Kirkpatrick 1992). Although geologic not be explained by the properties of the actions limited to these areas, therefore, maps do not list serpentine rock at the mapped soil type alone (such as the would not trigger a section 7 of the Act site itself, they do show it within a mile Coarsegold soils at the Mine Hill consultation, unless they affect the to the northeast and southwest (CDMG location), we mapped critical habitat species or primary constituent elements 1991; Jennings 1977; CDC 2000). The boundaries to the same underlying rock in adjacent critical habitat. site itself sits over ‘‘precenazoic type as at the population site (CDC Critical Habitat Designation metasedimentary and metavolcanic 2000). We then used recent aerial rocks of great variety’’ (Jennings 1977). photos (SPOT 2001), topological maps Lands designated as critical habitat Hence, it appears likely that the site (USGS 1990), and discussions with are under private and Federal consists of a pocket habitat of serpentine experts familiar with the areas (R. jurisdiction and include one or more of soil which was too small to be mapped Faubion, U.S. Bureau of Reclamation the primary constituent elements (E. Russell, pers. comm., 2002). SCS soil (BOR), pers. comm., 2002; C. Peck, pers. described above. The approximate areas maps tend to list only the dominant soil comm., 2002) to eliminate large of critical habitat by land ownership are type in an area. Other such pocket contiguous areas which were noticeably shown in Table 1.

TABLE 1.—APPROXIMATE AREAS IN HECTARES (HA) AND ACRES (AC) OF CRITICAL HABITAT FOR Sidalcea keckii BY LAND OWNERSHIP

Unit Federal Private Total

1. Piedra ...... 3 ha (7 ac) ...... 203 ha (503 ac) ...... 206 ha (510 ac) 2. Mine Hill ...... 0 ...... 86 ha (213 ac) ...... 86 ha (213 ac) 3. White River ...... 0 ...... 146 ha (362 ac) ...... 146 ha (362 ac)

Totals ...... 3 ha (7 ac) ...... 435 ha (1,078 ac) ...... 438 ha (1,085 ac)

The three critical habitat units Unit 1: Piedra for the conservation of Sidalcea keckii include the only two locations where and other rare plants. SFC uses managed Sidalcea keckii has been observed since Unit 1 is on the western slopes of grazing as a tool to reduce competing the 1930s and the type locality. This Tivy Mountain in the Piedra area of non-native grasses from S. keckii sites, later site may still be occupied by a seed southern Fresno County. It contains 206 and monitors the plant as well (SFC bank, and is the most appropriate ha (510 ac), of which 203 ha (503 ac) are 2001). Another 6.5 ha (16 ac) of this unit location to consider for reestablishment privately owned and 3 ha (7 ac) are occurs on a conservation easement held efforts. A brief description of each managed by the BOR (R. Faubion, pers. by SFC on privately owned land critical habitat unit is given below: comm., 2002). Of the privately owned adjacent to the reserve. land, 77 ha (189 ac) of proposed critical Recent surveys of the areas containing habitat is on the Tivy Mountain Reserve documented populations of Sidalcea which is owned by SFC and established keckii were conducted in 1998, 2000,

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and 2001. In 1998, surveys coordinated events that are a concern include fire and other non-Federal entities are by the BOR found 500 to 1,000 plants and disease (Shaffer 1981, 1987; affected by the designation of critical in the area (Cypher 1998). Surveys Primack 1993, Meffe and Carroll 1994). habitat only if their actions occur on conducted in 2000 and 2001 by the SFC Federal lands, require a Federal permit, Unit 3: White River found eight separate patches of S. keckii license, or other authorization, or growing on both Fancher and Cibo soils Unit 3 is located near the town of involve Federal funding. (C. Peck, in litt., 2002). White River in southern Tulare County. Section 7(a) of the Act requires This unit is essential to the It contains 146 ha (362 ac), all of which Federal agencies, including the Service, conservation of the species because it is is private land. Unit 3 contains the to evaluate their actions with respect to one of the two sites at which the species ‘‘type’’ location, specimens from which any species that is proposed or listed as has been observed since the 1930s. were used to first describe the species endangered or threatened, and with When the number of populations or in 1940 (Wiggins 1940). This site is the respect to its critical habitat, if any is geographic distribution of a species are only one not closely associated with designated or proposed. Regulations severely limited, as is the case when serpentine rock, but contains the implementing this interagency plants have only been observed recently primary constituent elements that cooperation provision of the Act are at two locations, possible extinction or would support the species. This may be codified at 50 CFR part 402. Section extirpation due to random events due to the presence of currently 7(a)(4) of the Act requires Federal become a concern. Examples of random unknown and unmapped serpentine agencies to confer with us on any action events that are a concern include fire areas, or it may be due to an increased that is likely to jeopardize the continued and disease (Shaffer 1981, 1987; ability to compete on non-serpentine existence of a species proposed for Primack 1993, Meffe and Carroll 1994). Cibo soils. listing, or result in destruction or This unit is also essential because it As noted above, the White River site adverse modification of proposed includes the most northerly location is one of the extremely few locations critical habitat. Conference reports known for S. keckii, and is the only where Sidalcea keckii has ever been provide conservation recommendations location where above-ground plants observed and may be occupied by a seed to assist the action agency in with maroon-centered flowers have bank. Sidalcea keckii plants may still eliminating conflicts that may be caused been documented (Cypher 1998). occur here, but none have been by the proposed action. The documented recently. Even if the conservation measures in a conference Unit 2: Mine Hill species is not rediscovered at the White report are advisory. Unit 2 is about 3 km (2 mi) south of River site, we believe the site is We may issue a formal conference Success Dam and 5 km (3 mi) east of essential to the conservation of the report, if requested by the Federal action Porterville in Tulare County and species. Because S. keckii has been agency. Formal conference reports contains 86 ha (213 ac), all of which are observed at the site, it is the most include an opinion that is prepared on privately owned land. Unit 2 appropriate site at which a according to 50 CFR 402.14, as if the encompasses a single known patch of reestablishment effort might be species was listed or critical habitat Sidalcea keckii, which contained attempted. The combination of small designated. We may adopt the formal approximately 60 plants when last range, few populations, and restricted conference report as the biological surveyed in 1992. At the request of the habitat makes S. keckii susceptible to opinion when the species is listed or landowner, it has not been surveyed extinction or extirpation from a critical habitat designated, if no since that time. However, based on significant portion of its range due to substantial new information or changes information from public comment, the random events, such as fire, disease, or in the action alter the content and standing population at Mine Hill may other occurrences (Shaffer 1981, 1987; conclusion(s) of the opinion (50 CFR have been extirpated by conversion of Primack 1993, Meffe and Carroll 1994). 402.10(d)). the habitat to an orange grove. We Such events are a concern when the If a species is listed or critical habitat currently do not know how much number of populations or geographic is designated, section 7(a)(2) of the Act habitat may have been converted, distribution of a species are severely requires Federal agencies to ensure that although we believe that much of the limited, as is the case with S. keckii. activities they authorize, fund, or carry habitat around the original population Establishment of a third location for S. out are not likely to jeopardize the remains potentially viable and may keckii is likely to be an important continued existence of such a species or contain a seed bank or standing plants. component in reducing the risk of to destroy or adversely modify its The Coarsegold rock outcrop soils of the extinction due to such catastrophic critical habitat. If a Federal action may area are best suited to rangeland (SCS events. This location also represents the affect a listed species or its critical 1982), which is the current use of the southernmost extent of the known habitat, the responsible Federal agency area where not converted to orchard. historical range of the species. (action agency) must enter into However the site is also zoned for consultation with us. Through this mobile home development (R. Brady, Effects of Critical Habitat Designation consultation, the Federal action agency Tulare County Planning Department, Section 7(a) of the Act requires would ensure that the permitted actions pers. comm., 1997). Federal agencies, including the Service, do not destroy or adversely modify This unit is essential to the to ensure that actions they fund, critical habitat. conservation of the species because it is authorize, permit, or carry out do not If we issue a biological opinion presumably one of the two known destroy or adversely modify critical concluding that a project is likely to locations where Sidalcea keckii plants habitat. Destruction or adverse result in the destruction or adverse have been observed since the 1930s. As modification of critical habitat occurs modification of critical habitat, we also is the case with Unit 1, when the when a Federal action directly or provide ‘‘reasonable and prudent number of populations or geographic indirectly alters critical habitat to the alternatives’’ to the project, if any are distribution of a species are severely extent it appreciably diminishes the identifiable. Reasonable and prudent limited, possible extinction or value of critical habitat for the alternatives are defined at 50 CFR extirpation due to random events conservation of the species. Individuals, 402.02 as alternative actions identified become a concern. Examples of random organizations, States, local governments, during consultation that can be

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implemented in a manner consistent actions that may affect a listed species. for copies of the regulations on listed with the intended purpose of the action, Section 7 of the Act ensures that actions wildlife, and inquiries about that are consistent with the scope of the funded, authorized, or carried out by prohibitions and permits may be Federal agency’s legal authority and Federal agencies are not likely to addressed to the U.S. Fish and Wildlife jurisdiction, that are economically and jeopardize the continued existence of a Service, Branch of Endangered Species, technologically feasible, and that the listed species, or destroy or adversely 911 NE. 11th Ave., Portland, OR 97232 Director believes would avoid the modify the listed species’ critical (telephone 503/231–2063; facsimile likelihood of jeopardizing the continued habitat. Actions likely to ‘‘jeopardize the 503/231–6243). existence of listed species, or resulting continued existence’’ of a species are Exclusions Under Section 4(b)(2) in the destruction or adverse those that would appreciably reduce the modification of critical habitat. likelihood of the species’ survival and Subsection 4(b)(2) of the Act allows Reasonable and prudent alternatives recovery. Actions likely to ‘‘destroy or us to exclude areas from the critical can vary from slight project adversely modify’’ critical habitat are habitat designation where the benefits of modification to extensive redesign or those that would appreciably reduce the exclusion outweigh the benefits of relocation of the project. Costs value of critical habitat for the recovery designation, provided the exclusion will associated with implementing a of the listed species. not result in extinction of the species. reasonable and prudent alternative are Section 4(b)(8) of the Act requires us Following a review of available similarly variable. to evaluate briefly and describe, in any information from our files, public Regulations at 50 CFR 402.16 require proposed or final regulation that comments on the proposal, and the Federal agencies to reinitiate designates critical habitat, those economic analysis of the proposed consultation on previously reviewed activities involving a Federal action that designation, we have determined that actions under certain circumstances, may adversely modify such habitat or none of the lands proposed as critical including instances where critical that may be affected by such habitat warranted exclusion from the habitat is subsequently designated and designation. Activities that may destroy final designation based on economic the Federal agency has retained or adversely modify critical habitat impacts or other relevant impacts discretionary involvement, or control would be those that alter the primary pursuant to section 4(b)(2). has been retained, or is authorized by constituent elements to the extent that Relationship to Habitat Conservation law. Consequently, some Federal the value of critical habitat for the Plans and Other Planning Efforts agencies may request reinitiation of conservation of Sidalcea keckii is consultation or conference with us on appreciably reduced. We note that such Section 10(a)(1)(B) of the Act actions for which formal consultations activities may also jeopardize the authorizes us to issue permits for the has been completed, if those actions continued existence of the species. take of listed wildlife species incidental may affect designated critical habitat, or Activities that, when carried out, to otherwise lawful activities. An adversely modify or destroy proposed funded, or authorized by a Federal incidental take permit application must critical habitat. agency may directly or indirectly be supported by a habitat conservation Federal activities that may affect destroy or adversely modify critical plan (HCP) that identifies conservation Sidalcea keckii or its critical habitat will habitat for Sidalcea keckii include, but measures that the permittee agrees to require consultation under section 7 of are not limited to: implement for the species to minimize the Act. Activities on private lands that (1) Ground disturbances which and mitigate the impacts of the require a permit from a Federal agency, destroy or degrade primary constituent permitted incidental take. Although take such as a permit from the U.S. Army elements of the plant (e.g., clearing, of listed plants is not generally Corps of Engineers under section 404 of tilling, grading, construction, road prohibited by the Act on private land, the Clean Water Act (33 U.S.C. 1344 et building, mining, etc.); listed plant species may also be covered seq.), a section 10(a)(1)(B) of the Act (2) Activities that directly or in an HCP for wildlife species. permit from the Service, or any other indirectly affect Sidalcea keckii plants Currently, no HCPs exist that include activity requiring Federal action (e.g., or underlying seed bank (e.g., herbicide Sidalcea keckii as a covered species. funding or authorization from the application and off-road vehicle use that However, we are currently working with Federal Highways Administration or could degrade the habitat on which the PG&E on the development of an HCP on Federal Emergency Management species depends, incompatible operations and maintenance activities. Agency) will also continue to be subject introductions of non-native herbivores, This HCP is intending to treat S. keckii to the section 7 consultation process. incompatible grazing management as a covered species, and the area Federal actions not affecting listed during times when S. keckii is designated as critical habitat for S. species or critical habitat, and actions producing flowers or seeds, clearing, keckii may overlap with the planning on non-Federal lands that are not tilling, grading, construction, road area for this HCP. federally funded, authorized, or building, mining, etc.); In the event that future HCPs covering permitted do not require section 7 (3) Encouraging the growth of S. keckii are developed within the consultation. Not all of the areas within Sidalcea keckii competitors (e.g., boundaries of designated critical these units are capable of supporting S. widespread fertilizer application).; and habitat, we will work with applicants to keckii or its primary constituent (4) Activities which significantly ensure that the HCPs provide for elements, and such areas would not be degrade or destroy Sidalcea keckii protection and management of habitat subject to section 7 consultation unless pollinator populations (e.g. pesticide areas essential for the conservation of the action would affect the species or applications). this species. This will be accomplished primary constituent elements in If you have questions regarding by either directing development and adjacent designated critical habitat. whether specific activities will habitat modification to nonessential To properly portray the effects of constitute destruction or adverse areas, or appropriately modifying critical habitat designation, we must modification of critical habitat, contact activities within essential habitat areas first compare the section 7 requirements the Field Supervisor, Sacramento Fish so that such activities will not adversely for actions that may affect critical and Wildlife Office (see FOR FURTHER modify the primary constituent habitat with the requirements for INFORMATION CONTACT section). Requests elements. The HCP development

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process would provide an opportunity Federal, State, and local laws such as due to listing and critical habitat for more intensive data collection and the California Environmental Quality designation are presented in the analysis regarding the use of particular Act. The ‘‘with section 7’’ scenario economic analysis, according to land habitat areas by S. keckii. The process identifies land-use activities likely to use activities and individual critical would also enable us to conduct involve a Federal nexus that may affect habitat units. Costs incurred by third detailed evaluations of the importance the species or its designated critical parties result from technical assistance, of such lands to the long-term survival habitat and which have the potential to consultations, and development of a and conservation of the species in the be subject to future consultations under biological assessment. Costs to Federal context of constructing a system of section 7 of the Act. action agencies include those incurred interlinked habitat blocks configured to Upon identifying section 7 impacts, from consultations. Costs to the Service promote the conservation of the species the analysis proceeds to consider the result from technical assistance and through application of the principles of subset of impacts that can be attributed consultations. conservation biology. exclusively to the critical habitat We did not receive any comments on We will provide technical assistance designation. The upper-bound estimate the draft economic analysis of the and work closely with applicants includes both jeopardy and critical proposed determination. Following the throughout the development of any habitat impacts (e.g., total section 7 close of the comment period, the future HCPs to identify lands essential impacts). The subset of section 7 economic analysis was finalized. There for the long-term conservation of S. impacts likely to be affected solely by were no revisions or additions to the keckii, and appropriate management for the designation of critical habitat draft economic analysis. those lands. Furthermore, we will represents the lower-bound estimate of A copy of the final economic analysis complete intra-Service consultation on the analysis. The categories of potential and supporting documents are included our issuance of section 10(a)(1)(B) costs considered in the analysis in our supporting record for this permits for these HCPs to ensure permit included costs associated with: (1) rulemaking and may be obtained by issuance will not destroy or adversely Conducting section 7 consultations contacting the Sacramento Fish and modify critical habitat. associated with the listing or with the Wildlife Office (see ADDRESSES section). critical habitat, including reinitiated Economic Analysis Copies of the final economic analysis consultations and technical assistance; also are available on the Internet at Section 4(b)(2) of the Act requires us (2) modifications to projects, activities, http://pacific.fws.gov/news/. to designate critical habitat on the basis or land uses resulting from the section of the best scientific information 7 consultations; (3) uncertainty and Required Determinations available, and to consider the economic public perceptions resulting from the Regulatory Planning and Review and other relevant impacts of designation of critical habitat; 4) designating a particular area as critical potential indirect effects associated with In accordance with Executive Order habitat. We may exclude areas from the designation; and (5) potential 12866, the Office of Management and critical habitat upon a determination offsetting beneficial costs associated Budget (OMB) has determined that this that the benefits of such exclusions with critical habitat including critical habitat designation is not a outweigh the benefits of specifying such educational benefits. There may also be significant regulatory action. This rule areas as critical habitat. We cannot economic effects due to the reaction of will not have an annual economic effect exclude such areas from critical habitat the real estate market to critical habitat of $100 million or more or adversely when such exclusion will result in the designation, as real estate values may be affect any economic sector, extinction of the species concerned. lowered due to a perceived increase in productivity, competition, jobs, the Following the publication of the the regulatory burden. environment, or other units of proposed critical habitat designation, The analysis estimated that there will government. This designation will not we conducted a draft economic analysis be seven future section 7 consultations create inconsistencies with other to estimate the potential economic effect related to the proposed critical habitat agencies’ actions or otherwise interfere of the designation. The draft analysis designation for Sidalcea keckii. The with an action taken or planned by was made available for review on seven consultations included a another agency. It will not materially October 31, 2002 (67 FR 66378). We reinitiated programmatic consultation affect entitlements, grants, user fees, accepted public comment on the draft for oil pipeline maintenance, five loan programs, or the rights and analysis until December 2, 2002. informal consultations for private land obligations of their recipients. Finally, Our economic analysis evaluated the acquisition using BOR funds, and one this designation will not raise novel potential future effects associated with internal consultation by the Service to legal or policy issues. Accordingly, the listing of Sidalcea keckii as an insure compliance with an HCP that is OMB has not reviewed this final critical endangered species under the Act, as currently under development. The habitat designation. well as any potential effect of the administrative cost of these Regulatory Flexibility Act (5 U.S.C. 601 critical habitat designation above and consultations is estimated to range from et seq.) beyond those regulatory and economic $19,500 to $50,700 over a 10-year impacts associated with listing. To period. No project modifications are Under the Regulatory Flexibility Act quantify the proportion of total potential expected to occur as a result of these (5 U.S.C. 601 et seq., as amended by the economic impacts attributable to the consultations. The total consultation Small Business Regulatory Enforcement critical habitat designation, the analysis cost attributable solely to the critical Fairness Act (SBREFA) of 1996), evaluated a ‘‘without section 7’’ habitat designation is estimated between whenever an agency is required to scenario and compared it to a ‘‘with $7,000 and $12,600 over a 10-year publish a notice of rulemaking for any section 7’’ scenario. The ‘‘without period, with the remainder attributable proposed or final rule, it must prepare section 7’’ baseline represented the level co-extensively to the listing. and make available for public comment of protection currently afforded to the Total costs resulting from technical a regulatory flexibility analysis that species under the Act if section 7 assistance, formal and informal describes the effects of the rule on small protective measures were absent, and consultations, development of biological entities (i.e., small businesses, small includes protections afforded by other assessments, and project modifications organizations, and small government

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jurisdictions). However, no regulatory critical habitat only has the potential to Small Business Regulatory Enforcement flexibility analysis is required if the affect activities conducted, funded, or Fairness Act (5 U.S.C. 804(2)) head of the agency certifies the rule will permitted by Federal agencies. In areas OMB’s Office of Information and not have a significant economic impact where the species is present, Federal Regulatory Affairs has determined that on a substantial number of small agencies are already required to consult this rule is not a major rule under 5 entities. SBREFA amended the with us under section 7 of the Act on U.S.C. 804(2), the Small Business Regulatory Flexibility Act (RFA) to activities that they fund, permit, or Regulatory Enforcement Fairness Act. In require Federal agencies to provide a implement that may affect Sidalcea the economic analysis, we determined statement of the factual basis for keckii. Federal agencies must also whether designation of critical habitat certifying that a rule will not have a consult with us if their activities may would cause (a) any effect on the significant economic effect on a affect designated critical habitat. Some economy of $100 million or more, (b) substantial number of small entities. kinds of activities are unlikely to have any increases in costs or prices for SBREFA also amended the RFA to any Federal involvement and so will not consumers, individual industries, require a certification statement. In this be affected by critical habitat Federal, State, or local government final rule, we are certifying that the designation. agencies, or geographic regions, or (c) critical habitat designation for Sidalcea keckii will not have a significant As required under section 4(b)(2) of any significant adverse effects on economic impact on a substantial the Act, we conducted an analysis of the competition, employment, investment, number of small entities. The following potential economic impacts of this productivity, innovation, or the ability discussion explains our rationale. critical habitat designation. In the of U.S.-based enterprises to compete Small entities include small analysis, we found that the future with foreign-based enterprises. Refer to organizations, such as independent section 7 consultations resulting from the final economic analysis for a nonprofit organizations, and small the listing of Sidalcea keckii and the discussion of the effects of this governmental jurisdictions, including proposed designation of critical habitat determination. We anticipate that this school boards and city and town could potentially impose total economic final rule will not place significant governments that serve fewer than costs for consultation and modifications additional burdens on any entity. 50,000 residents, as well as small to projects to range between Executive Order 13211 businesses (13 CFR 121.201). Small approximately $19,500 to $50,700 over businesses include manufacturing and the next 10-year period. On May 18, 2001, the President issued mining concerns with fewer than 500 an Executive Order on regulations that The primary land use activity within significantly affect energy supply, employees, wholesale trade entities the three units is grazing. Additionally, with fewer than 100 employees, retail distribution, and use. Executive Order Pacific Gas & Electricity also maintains 13211 requires agencies to prepare and service businesses with less than $5 two powerlines in Unit 1, and Southern million in annual sales, general and Statements of Energy Effects when California Gas operates and maintains undertaking certain actions. This rule is heavy construction businesses with less oil pipelines within the boundaries of than $27.5 million in annual business, not a significant regulatory action under its Northern Service Territory, which Executive Order 12866. It is not special trade contractors doing less than include Unit 3. The analysis identified $11.5 million in annual business, and expected to significantly affect energy three categories of activities that will supplies, distribution, or use. In our agricultural businesses with annual potentially require section 7 sales less than $750,000. To determine Economic Analysis, we did not identify consultation with the Service in the energy production or distribution as if potential economic impacts to these next 10 years. These included informal small entities are significant, we being significantly affected by this consultations with the BOR on habitat designation, and we received no consider the types of activities that acquisition; a reinitiation of a might trigger regulatory impacts under comments indicating that the proposed programmatic consultation with the designation could significantly affect this rule as well as the types of project Bureau of Land Management on oil modifications that may result. In energy supplies, distribution, or use. pipeline operations and maintenance; Therefore, this action is not a significant general, the term ‘‘significant economic and an internal section 7 consultation impact’’ is meant to apply to a typical energy action and no Statement of on an HCP currently under Energy Effect is required. small business firm’s business development. None of the remaining operations. activities are foreseeable, have a Federal Unfunded Mandates Reform Act (2 To determine if this rule would affect nexus, and are harmful to the plant or U.S.C. 1501 et seq.) a substantial number of small entities, its habitat. we consider the number of small In accordance with the Unfunded entities affected within particular types In summary, we have considered Mandates Reform Act (2 U.S.C. 1501, et of economic activities (e.g., housing whether this rule could result in seq.): development, grazing, oil and gas significant economic effects on a (a) This rule will not ‘‘significantly or production, timber harvesting, etc.). We substantial number of small entities. uniquely’’ affect small governments. A apply the ‘‘substantial number’’ test Our analysis concluded that the only Small Government Agency Plan is not individually to determine if certification economic costs likely to occur as a required. Small governments will be is appropriate. In some circumstances, result of the critical habitat designation affected only to the extent that they especially with proposed critical habitat will be borne solely by Federal agencies, must ensure that any programs having designations of very limited extent, we which do not qualify as small business Federal funds, permits, or other may aggregate across all industries and entities. Therefore, we are certifying that authorized activities must ensure that consider whether the total number of the designation of critical habitat for their actions will not adversely modify small entities affected is substantial. Sidalcea keckii will not have a or destroy designated critical habitat. In estimating the numbers of small significant economic impact on a (b) This rule will not produce a entities potentially affected, we also substantial number of small entities. Federal mandate on State, local, or consider whether their activities have Accordingly, a regulatory flexibility Tribal governments of $100 million or any Federal involvement. Designation of analysis is not required. greater in any year. The designation of

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critical habitat imposes no obligations sponsored activities may occur, it may Government-to-Government on State or local governments. assist these local governments in long- Relationship with Tribes Therefore, it is not a ‘‘significant range planning, rather than waiting for In accordance with the President’s regulatory action’’ under the Unfunded case-by-case section 7 consultations to memorandum of April 29, 1994, Mandates Reform Act occur. ‘‘Government-to-Government Relations Takings Civil Justice Reform with Native American Tribal Governments’’ (59 FR 22951), Executive In accordance with Executive Order In accordance with Executive Order Order 13175, and the Department of the 12630 (‘‘Government Actions and 12988, the Department of the Interior’s Interior’s manual at 512 DM 2, we Interference with Constitutionally Office of the Solicitor has determined readily acknowledge our responsibility Protected Private Property Rights’’), we to communicate meaningfully with have analyzed the potential takings that this rule does not unduly burden the judicial system and meets the federally recognized Tribes on a implications of designating Government-to-Government basis. The approximately 438 ha (1,085 ac) of lands requirements of sections 3(a) and 3(b)(2) of the Order. We have designated designated critical habitat for Sidalcea in Fresno and Tulare counties, keckii does not contain any Tribal lands California, as critical habitat for critical habitat in accordance with the provisions of the Endangered Species or lands that we have identified as Sidalcea keckii. The takings impacting Tribal trust resources. implications assessment concludes that Act, as amended. The rule uses standard this final rule does not pose significant property descriptions and identifies the References Cited takings implications. primary constituent elements within the designated areas to assist the public in A complete list of all references cited in this final rule is available upon Federalism understanding the habitat needs of request from the Sacramento Fish and Sidalcea keckii. In accordance with Executive Order Wildlife Office (see ADDRESSES section). 13132, this rule does not have Paperwork Reduction Act of 1995 (44 significant Federalism effects. A Author U.S.C. 3501 et seq.) Federalism Assessment is not required. The primary authors of this final rule In keeping with Department of the This rule does not contain any new are Glen Tarr and Kirsten Tarp, Interior policy, we requested collections of information that require Sacramento Fish and Wildlife Office information from, and coordinated OMB approval under the Paperwork (see ADDRESSES section). development of this critical habitat Reduction Act (44 U.S.C. 3501 et seq.). List of Subjects in 50 CFR Part 17 designation with, appropriate State This rule will not impose new record- resource agencies in California. We will keeping or reporting requirements on Endangered and threatened species, continue to coordinate any future State or local governments, individuals, Exports, Imports, Reporting and changes in the designation of critical businesses, or organizations. An agency recordkeeping requirements, and habitat for Sidalcea keckii with the may not conduct or sponsor, and a Transportation. appropriate State agencies. Where the person is not required to respond to, a Regulation Promulgation species is present, the designation of collection of information unless it critical habitat imposes no additional displays a currently valid OMB control Accordingly, we amend part 17, restrictions to those currently in place number. subchapter B of chapter I, title 50 of the and, therefore, has little incremental Code of Federal Regulations as set forth impact on State and local governments National Environmental Policy Act below: and their activities. The designation of critical habitat in unoccupied areas may We have determined that we do not PART 17—[AMENDED] require consultation under section 7 of need to prepare an Environmental 1. The authority citation for part 17 the Act on non-Federal lands (where a Assessment and/or an Environmental continues to read as follows: Federal nexus occurs) that might Impact Statement, as defined by the otherwise not have occurred. The National Environmental Policy Act of Authority: 16 U.S.C. 1361–1407; 16 U.S.C. designation may have some benefit to 1969, in connection with regulations 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– these governments in that the areas adopted pursuant to section 4(a) of the 625, 100 Stat. 3500; unless otherwise noted. essential to the conservation of the Act. We published a notice outlining 2. In § 17.12(h), revise the entry for species are more clearly defined, and our reason for this determination in the ‘‘Sidalcea keckii,’’ under ‘‘FLOWERING the primary constituent elements of the Federal Register on October 25, 1983 PLANTS,’’ to read as follows: habitat necessary to the survival of the (48 FR 49244). This determination does species are identified. While this not constitute a major Federal action § 17.12 Endangered and threatened plants. definition and identification does not significantly affecting the quality of the * * * * * alter where and what federally human environment. (h) * * *

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

FLOWERING PLANTS

******* Sidalcea keckii ...... Keck’s U.S.A. (CA) ...... Malvaceae—Mallow E 685 17.96(a) NA checkermallow.

*******

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3. In § 17.96, amend paragraph (a) by (i) Minimally shaded annual those areas, therefore, would not trigger adding an entry for ‘‘Family Malvaceae’’ grasslands in the foothills of the Sierra a consultation under section 7 of the Act Sidalcea keckii in alphabetical order to Nevada Mountains containing open unless they may affect the species and/ read as follows: patches in which competing vegetation or primary constituent elements in is relatively sparse; and § 17.96 Critical habitat—plants. adjacent critical habitat. (a) * * * (ii) Serpentine soils or other soils that (4) Critical Habitat Map Units tend to restrict competing vegetation. Family Malvaceae: Sidalcea keckii (i) Data layers defining map units (Keck’s checkermallow). (3) Existing features and structures were created on a base of USGS 7.5’ (1) Critical habitat units are depicted made by people, such as buildings, quadrangles, and critical habitat units for Fresno and Tulare Counties, roads, railroads, airports, other paved were then mapped using Universal California, on the maps below. areas, lawns, and other urban Transverse Mercator (UTM) coordinates. (2) The primary constituent elements landscaped areas, do not contain one or of critical habitat for Sidalcea keckii are more of the primary constituent (ii) Note: Index map follows: the habitat components that provide: elements. Federal actions limited to BILLING CODE 4310–55–P

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BILLING CODE 4310–55–C

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(5) Unit 1: Piedra Unit, Fresno 4074700; 287700, 4074900; 287000, 4075100; 288100, 4075100; 288000, County, California. 4075600; 287400, 4076100; 287500, 4075000; 288300, 4075000; 288300, (i) From USGS 1:24,000 quadrangle 4076300; 287500, 4076700; 287800, 4074700. maps Piedra, and Pine Flat Dam, 4077000; 288000, 4077100; 288400, (ii) Note: Unit 1 map follows: California; land bounded by the 4076900; 288400, 4076600; 288500, following UTM11 NAD83 coordinates 4076300; 288300, 4075800; 288200, BILLING CODE 4310–55–P (E,N): 288300, 4074700; 288200, 4075700; 288300, 4075300; 288200,

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BILLING CODE 4310–55–C 3988600; 326500, 3988600; 326200, 3989300; 327200, 3989000; 327100, (6) Unit 2: Mine Hill Unit, Tulare 3988900; 326100, 3989100; 326200, 3988900; 326700, 3988700; 326600, County, California. 3989200; 326200, 3989300; 326300, 3988600. (i) From USGS 1:24,000 quadrangle 3989400; 326500, 3989400; 326500, maps Success Dam, California; land (ii) Note: Unit 2 map follows: 3989500; 326700, 3989600; 327300, bounded by the following UTM11 3989600; 327400, 3989500; 327400, BILLING CODE 4310–55–P NAD83 coordinates (E,N): 326600,

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BILLING CODE 4310–55–C

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(7) Unit 3: White River Unit, Tulare 3964100; 333900, 3964200; 333800, 3964400; 335500, 3964400; 335500, County, California. 3964500; 333800, 3964700; 334000, 3964100; 335200, 3963800; 334800, (i) From USGS 1:24,000 quadrangle 3964800; 334400, 3964500; 334500, 3963600. maps White River, California; land 3964500; 334700, 3964600; 334900, (ii) Note: Unit 3 map follows: bounded by the following UTM11 3964800; 335100, 3964800; 335300, NAD83 coordinates (E,N): 334800, 3964900; 335400, 3964700; 335300, BILLING CODE 4310–55–P 3963600; 334100, 3963800; 333900, 3964600; 335300, 3964500; 335400,

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Dated: March 7, 2003. Craig Manson, Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 03–6132 Filed 3–17–03; 8:45 am] BILLING CODE 4310–55–P

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