Federal Register / Vol. 67, No. 118 / Wednesday, June 19, 2002 / Proposed Rules 41669

and comment (67 FR 17122). The Dated: June 7, 2002. Cottage Way, Suite W–2605, proposal provided for a 90-day Diane C. Regas, Sacramento, CA 95825. comment period, which was scheduled Acting Assistant Administrator for Water. You may also send comments by to end on July 8, 2002. [FR Doc. 02–15456 Filed 6–18–02; 8:45 am] electronic mail (e-mail) to [email protected]. See EPA received multiple requests from BILLING CODE 6560–50–P the Public Comments Solicited section the potentially regulated community to below for file format and other extend the comment period. In most information about electronic filing. cases, a general extension of 60 days DEPARTMENT OF THE INTERIOR Comments and materials received will was requested. In one case, a 30-day Fish and Wildlife Service be available for public inspection, by comment extension was requested for appointment, during normal business the proposed rule with an additional 30 50 CFR Part 17 hours at the above address. days required to prepare comments FOR FURTHER INFORMATION CONTACT: Glen related to the case studies, economic RIN 1018–AG93 Tarr or Susan Moore, U.S. Fish and and benefits assessment, and related Endangered and Threatened Wildlife Wildlife Service (telephone 916/414– portions of the proposed rule. These 6600; facsimile 916/414–6710). requests argued that an extension of the and Plants; Critical Habitat SUPPLEMENTARY INFORMATION: comment period was necessary because Designation for Sidalcea keckii (Keck’s of the large volume of material checkermallow) Background associated with the proposed rule, AGENCY: Fish and Wildlife Service, Sidalcea keckii (Keck’s including the extensive rulemaking Interior. checkermallow) is an annual herb of the record; the complexity of the proposal ACTION: Proposed rule. mallow family (Malvaceae). The species and the need for coordination among grows 15 to 33 centimeters (cm) (6 to 13 multidisciplinary areas of expertise SUMMARY: We, the U.S. Fish and inches (in)) tall, with slender, erect (e.g., economic, scientific, engineering, Wildlife Service (Service), propose to stems that are hairy along their entire and legal); the inclusion in the proposal designate critical habitat pursuant to the length. Leaves towards the base of the of several innovative concepts, such as Endangered Species Act of 1973 as plant have a roughly circular outline, trading and mitigation through amended (Act), for Sidalcea keckii and seven to nine shallow lobes restoration measures, that require time (Keck’s checkermallow). Approximately arranged somewhat like the fingers of a and effort to comprehend and evaluate; 438 hectares (ha) (1,085 acres (ac)) are hand (palmate). Leaves farther up the difficulty in accessing several electronic proposed in California, consisting of plant have fewer lobes which are more documents contained in the rulemaking three separate units: one unit in Fresno deeply divided. Both types of leaves record; the amount of time needed to County, 206 ha (510 ac), and two units also have irregular serrations at their copy all written materials in the record in Tulare County, one of 86 ha (213 ac) margins forming ‘‘teeth.’’ The plant for offsite review; difficulty in and one of 146 ha (362 ac). flowers in April and early May, ascertaining how various aspects of the Critical habitat receives protection producing five petalled flowers that are record support the proposal; and from destruction or adverse either solid pink or pink with a maroon numerous information requests made by modification through required center. Petals are 1 to 2 cm (0.4 to 0.8 consultation under section 7 of the Act EPA within the proposal (i.e., 88 in) long, and are often shallowly with regard to actions carried out, separate requests for comment solicited notched at their outermost margins. funded, or authorized by a Federal from the regulated community). Parties Below the petals is a smaller calyx agency. Section 4 of the Act requires us requesting an extension argued that the (cuplike structure) formed by five to consider economic and other relevant 90-day comment period was insufficient narrow green sepals (modified leaves). impacts when specifying any particular to fully understand the entire content of Each sepal is 8 to 11 millimeters (mm) area as critical habitat. (0.3 to 0.4 in) long, and has a maroon the proposal, verify data and We solicit data and comments from calculations associated with the line running down its center. Below the the public on all aspects of this calyx are bracts (modified leaflike proposal (especially impingement and proposal, including data on economic entrainment losses and correlated structures), which are much shorter and other impacts of the designation, than the sepals and are either undivided benefits), and prepare written and our approaches for handling any comments. or divided into two threadlike lobes. future habitat conservation plans. We Sidalcea keckii is distinguished from In response to these requests, EPA is may revise this proposal prior to final other members of its genus by the extending the comment period by 30 designation to incorporate or address maroon lines on its sepals, its much days, through August 7, 2002, because new information received during the shorter bracts, and by stems which are of the complexity and the range of comment period. hairy along their entire length issues raised in the proposal. EPA made DATES: We will accept comments until (Kirkpatrick 1992; Shevock 1992; Hill copies of the proposed rule and August 19, 2002. Public hearing 1993). preamble available to potentially requests must be received by August 5, Sidalcea keckii fruit consist of four to regulated industries, States, 2002. five wedge-shaped sections arranged in environmental groups, and the public ADDRESSES: If you wish to comment, a disk. The sections measure 3 to 4 mm on March 6, 2002, 34 days prior to you may submit your comments and (0.1 to 0.2 in) across, and each contains publication of the proposed rule and materials concerning this proposal by a single seed (Abrams 1951; Hill 1993; preamble in the Federal Register. EPA any one of several methods: Cypher 1998). Sections mature and believes that 120 days is a sufficient You may submit written comments separate in May, but their methods of period of time for comment on the and information or hand-deliver dispersal, other than gravity, are proposed rule, especially in light of the comments to the Field Supervisor, currently unknown (Cypher 1998). Also prepublication availability of the Sacramento Fish and Wildlife Office, unknown are the seeds’ requirements proposed rule and preamble. U.S. Fish and Wildlife Service, 2800 for germination (sprouting) in the wild,

VerDate May<23>2002 17:02 Jun 18, 2002 Jkt 197001 PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 E:\FR\FM\19JNP1.SGM pfrm17 PsN: 19JNP1 41670 Federal Register / Vol. 67, No. 118 / Wednesday, June 19, 2002 / Proposed Rules

their typical germination dates, and how somewhat vague description of the current level does not appear to be long the seeds remain viable in the soil. White River site (Wiggins 1940). detrimental, and may reduce Based on other Malvaceae species, and Searches at the site may also simply encroachment by non-native grasses (C. on recent observations of extreme yearly have been conducted during poor years Peck, in litt., 2002; Weiss 1999), fluctuations in numbers of above- when few above-ground plants had however, cattle damage S. keckii ground plants, it is likely that S. keckii germinated from the seed bank (S. Hill, directly by eating and trampling it, and seeds remain viable for several years in litt., 1997). Now that botanists have unmanaged increases in grazing during and form a persistent soil seed bank (W. a better understanding of what months of flowering or seed maturation Moise as in Ellen Cypher, Endangered constitutes appropriate habitat for the could pose a threat (Cypher 1998). The Species Recovery Program, California species, based on the discovery of plant’s low population numbers, State University, in litt., 1999; S. Hill, additional sites (see below), it is particularly at Mine Hill, leave it Illinois Natural History Survey, pers. possible that future surveys may vulnerable to random environmental comm., 2002 ). Persistent seed banks relocate S. keckii at the White River site. events such as extreme weather, disease, consist of all the viable seeds left Initial visits to the site have already or insect infestations (Shaffer 1981, ungerminated in the soil longer than a identified areas of likely habitat (John 1987; Menges 1991). The isolation of S. single growing season, and typically Stebbins, Herbarium Curator, California keckii populations exacerbates these extend over a much greater area than the State University, pers. comm., 2002). vulnerabilities by reducing the observable above-ground plants (Given Sidalcea keckii was presumed extinct likelihood of recolonization of 1994). The number and location of until it was rediscovered in 1992 at a extirpated populations. Inbreeding standing plants in a population with a site near Mine Hill in Tulare County depression and loss of genetic persistent seed bank may vary annually (Stebbins 1992). The Mine Hill variability may also be causes for due to a number of factors, including population contained about 60 plants concern in such small isolated the amount and timing of rainfall, growing on private land around a populations (Ellstrand and Elam 1993). temperature, soil conditions, and the serpentine rock outcrop on 20 to 40 Previous Federal Action extent and nature of the seed bank. As percent slopes at about 229 meters (m) the depository from which each new (750 feet (ft)) elevation. Associated Federal action on Sidalcea keckii generation of plants must grow, such plants included Achyrachaena mollis began when the Secretary of the seed banks are extremely important for (blow-wives), Bromus madritensis ssp. Smithsonian Institution, as directed by an annual species’ long-term survival in rubens (red brome), Lepidium nitidum section 12 of the Act, prepared a report an area, and may maintain a population (shining peppergrass), Senecio vulgaris on those native U.S. plants considered through years in which few or no above- (common groundsel), Plantago erecta to be endangered, threatened, or extinct ground plants can grow or survive (California plantain), and Silene gallica in the United States. This report (House (Baskin and Baskin 1978). (windmill pink) (Kirkpatrick 1992; Doc. No. 94–51) was presented to The primary pollinators of Sidalcea Cypher 1998). This population has not Congress on January 9, 1975, and keckii are unknown, but two related been resurveyed since 1992 due to the included S. keckii as a threatened California species of Sidalcea withdrawal of permission by the species. On July 1, 1975, we published (S.oregana ssp. spicata and S. landowner (E. Cypher, pers. comm., a notice in the Federal Register (40 FR malviflora ssp. malviflora) are 2001). 27823) accepting the report as a petition pollinated primarily by various species Using habitat information from the within the context of section 4(c)(2) and families of solitary bees, bumble Mine Hill site, botanists resurveyed a (now section 4(b)(3)) of the Act and of bees, and bee flies (Ashman and Stanton location in the Piedra area of Fresno our intention to review the status of the 1991; Graff 1999). Many bees of the County where Sidalcea keckii had been plant taxa named in the report. On June solitary bee genus Diadasia specialize in documented in 1939, and rediscovered 16, 1976, we published a proposed rule collecting pollen solely from members the population in 1998 (Service 1997; in the Federal Register (41 FR 24523) of the Malvaceae family (Service 1998). CNDDB 2001). This population spans a determining approximately 1,700 Sidalcea keckii is endemic to mix of private and Federal land, much vascular plant species to be endangered California and grows in relatively open of which has since been purchased by pursuant to section 4 of the Act. areas on grassy slopes of the Sierra Sierra Foothill Conservancy (SFC) to Sidalcea keckii was not included on this foothills in Fresno and Tulare counties. provide a reserve for the plant (SFC initial list. It is associated with serpentine soils 2001). Although initially only 217 We addressed the remaining plants (Kirkpatrick 1992; Cypher 1998), which plants were found at the site (Service from the Smithsonian report in a are unusually low in nutrients and high 2000), subsequent surveys have found subsequent Notice of Review (Notice) on in heavy metals. These soil properties 500 to 1,000 plants in 8 separate patches December 15, 1980 (45 FR 82479). In tend to restrict the growth of many ranging in elevation from 183 to 305 m that Notice, we determined Sidalcea competing plants (Brooks 1987). As (600 to 1,000 ft) (Cypher 1998; Chuck keckii to be a category 1 candidate with many serpentine species, S. keckii Peck, SFC, in litt., 2002). Associated species, which we defined as a species appears to compete poorly with densely plants at this site include Bromus for which we had enough information growing non-native annual grasses hordeaceus (soft chess), Dichelostemma on biological vulnerability and threats (Stebbins 1992; Weiss 1999). capitatum (blue dicks), Gilia tricolor to support preparation of a listing The primary reason so much remains (bird’s eye gilia), Trileleia ixioides proposal. We published updates of the unknown about Sidalcea keckii is that (pretty face), Trileleia laxa (Ithuriel’s plant candidate lists in Notices of after botanists first collected samples spear), Asclepias sp. (milkweed), and Review dated September 27, 1985 (50 from a site near White River, Tulare Madia sp. (tarweed) (Cypher 1998). FR 39526), February 21, 1990 (55 FR County in 1935, 1938, and 1939 Sidalcea keckii is threatened by urban 6184), and September 30, 1993 (58 FR (Wiggins 1940; California Natural development, competition from non- 51144), each time maintaining S. keckii Diversity Database (CNDDB) 2001), it native grasses, agricultural land as category 1 species. In the Notice of was not collected or observed by conversion, and random events (S. Hill, Review published February 28, 1996 (61 botanists again for over 50 years. A pers. comm., 2002; C. Peck, in litt., FR 7596), we discontinued the use of possible reason for this includes the 2002; Service 2000). Cattle grazing at the different categories of candidates, and

VerDate May<23>2002 17:02 Jun 18, 2002 Jkt 197001 PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 E:\FR\FM\19JNP1.SGM pfrm17 PsN: 19JNP1 Federal Register / Vol. 67, No. 118 / Wednesday, June 19, 2002 / Proposed Rules 41671

defined ‘‘candidate species’’ as those critical habitat. Aside from the added will not result in extinction of the meeting the definition of former protection that may be provided under species. category 1. We maintained S. keckii as section 7, the Act does not provide other Our Policy on Information Standards a candidate species in that Notice, as forms of protection to lands designated Under the Endangered Species Act, well as in subsequent Notices published as critical habitat. Because consultation published on July 1, 1994 (59 FR September 19, 1997 (62 FR 49398), and under section 7 of the Act does not 34271), provides criteria, establishes October 25, 1999 (64 FR 57533). apply to activities on private or other procedures, and provides guidance to On July 28, 1997, we published a non-Federal lands that do not involve a ensure that our decisions represent the proposed rule to list Sidalcea keckii as Federal nexus, critical habitat best scientific and commercial data an endangered species under the Act (62 designation would not afford any available. It requires that our biologists, FR 40325). On June 17, 1999, our failure additional regulatory protections under to the extent consistent with the Act and to issue a final rule and to make a the Act. with the use of the best scientific and critical habitat determination for S. Critical habitat also provides non- commercial data available, use primary keckii was challenged in Southwest regulatory benefits to the species by and original sources of information as Center for Biological Diversity, et al., v. informing the public and private sectors the basis for recommendations to U.S. Fish and Wildlife Service, et al. of areas that are important for species designate critical habitat. When (N.D. Cal) (Case No. C99–2992 CRB). On recovery and where conservation determining which areas are critical February 16, 2000, we published a final actions would be most effective. habitat, a primary source of information rule listing S. keckii as an endangered Designation of critical habitat can help should be the listing rule for the species. species (65 FR 7757). A May 22, 2000, focus conservation activities for a listed Additional information may be obtained court order, based on a joint stipulation species by identifying areas that contain from a recovery plan, articles in peer- with the plaintiffs, required us to the physical and biological features reviewed journals, conservation plans complete the proposed critical habitat essential for the conservation of that developed by States and counties, designation by September 30, 2001. The species, and can alert the public as well scientific status surveys and studies, court extended the deadline to propose as land-managing agencies to the and biological assessments or other critical habitat for this species, based on importance of those areas. Critical unpublished materials. Section 4 of the Act requires that we a further settlement agreement reached habitat also identifies areas that may designate critical habitat based on what by the parties. In a consent decree require special management we know at the time of designation. issued October 2, 2001, the court considerations or protection, and may Habitat is often dynamic, and species required us to publish a proposed help provide protection to areas where may move from one area to another over critical habitat designation for S. keckii significant threats to the species have time. Furthermore, we recognize that and certain other species by June 10, been identified, by helping people to 2002, and to issue a final critical habitat designation of critical habitat may not avoid causing accidental damage to designation for the species by March 10, include all of the habitat areas that may such areas. 2003 (Center for Biological Diversity, et eventually be determined to be al., v. Gale Norton, et al. (D.D.C.) (Case. In order to be included in a critical necessary for the recovery of the No. Civ. 01–2063)). habitat designation, the habitat must species. For these reasons, critical first be ‘‘essential to the conservation of habitat designations do not signal that Critical Habitat the species.’’ Critical habitat habitat outside the designation is Section 3 of the Act defines critical designations identify, to the extent unimportant or may not be required for habitat as—(i) the specific areas within known and using the best scientific and recovery. Areas that support newly the geographical area occupied by a commercial data available, habitat areas discovered populations in the future, species, at the time it is listed in that provide at least one of the physical but are outside the critical habitat accordance with the Act, on which are or biological features essential to the designation will continue to be subject found those physical or biological conservation of the species (primary to conservation actions implemented features (I) essential to the conservation constituent elements, as defined at 50 under section 7(a)(1) of the Act and to of the species and (II) that may require CFR 424.12(b)). Section 3(5)(C) of the the regulatory protections afforded by special management considerations or Act states that not all areas that can be the section 7(a)(2) jeopardy standard protection; and (ii) specific areas occupied by a species should be and the section 9 prohibitions, as outside the geographic area occupied by designated as critical habitat unless the determined on the basis of the best a species at the time it is listed, upon Secretary determines that all such areas available information at the time of the a determination that such areas are are essential to the conservation of the action. Federally funded or assisted essential for the conservation of the species. Our regulations (50 CFR projects affecting listed species outside species. ‘‘Conservation’’ means the use 424.12(e)) also state that, ‘‘The Secretary their designated critical habitat areas of all methods and procedures that are shall designate as critical habitat areas may still result in jeopardy findings in necessary to bring an endangered or a outside the geographic area presently some cases. Similarly, critical habitat threatened species to the point at which occupied by the species only when a designations made on the basis of the listing under the Act is no longer designation limited to its present range best available information at the time of necessary. would be inadequate to ensure the designation will not control the Critical habitat receives protection conservation of the species.’’ direction and substance of future under section 7 of the Act through the Section 4(b)(2) of the Act requires that recovery plans, habitat conservation prohibition against destruction or we take into consideration the economic plans, or other species conservation adverse modification of critical habitat impact, and any other relevant impact, planning efforts if new information with regard to actions carried out, of specifying any particular area as available to these planning efforts calls funded, or authorized by a Federal critical habitat. We may exclude areas for a different outcome. agency. Section 7 also requires from critical habitat designation when conferences on Federal actions that are the benefits of exclusion outweigh the Methods likely to result in the destruction or benefits of including the areas within As required by section 4(b)(2) of the adverse modification of proposed critical habitat, provided the exclusion Act and regulations at 50 CFR 424.12,

VerDate May<23>2002 17:02 Jun 18, 2002 Jkt 197001 PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 E:\FR\FM\19JNP1.SGM pfrm17 PsN: 19JNP1 41672 Federal Register / Vol. 67, No. 118 / Wednesday, June 19, 2002 / Proposed Rules

we used the best scientific information the natural variations in habitat connectivity or linkage within larger available to determine areas that contain conditions, the extent of the populations; (3) areas that provide basic the physical and biological features that distributions may either shrink and requirements for growth, such as water, are essential for the conservation of disappear, or if there is a residual seed light, and minerals; and (4) areas that Sidalcea keckii. This included bank present, enlarge and cover a more support populations of pollinators and information from our own documents extensive area. Because it is logistically seed dispersal organisms. on S. keckii and related species; the difficult to determine how extensive the We believe the long-term conservation CNDDB (2001); peer-reviewed journal seed bank is at any particular site and of Sidalcea keckii is dependent upon articles and book excerpts regarding S. because above-ground plants may or the protection of existing population keckii and related species, or regarding may not be present in all patches within sites and the maintenance of ecological more generalized issues of conservation a site every year, we cannot quantify in functions within these sites, including biology; unpublished biological any meaningful way what proportion of connectivity between colonies (i.e., documents regarding S. keckii or related each critical habitat unit may actually groups of plants within sites) within species; site visits, and discussions with be occupied by S. keckii. Therefore, close geographic proximity to facilitate botanical experts. patches of unoccupied habitat are pollinator activity and seed dispersal. We compared geological and probably interspersed with patches of The areas we are designating as critical ecological characteristics of the various occupied habitat in each unit. The habitat provide some or all of the habitat locations of the plant by using inclusion of unoccupied habitat in our components essential for the information from the above sources as critical habitat units reflects the conservation of S. keckii. Based on the well as geographic information systems dynamic nature of the habitat and the best available information at this time, (GIS) coverages of Sidalcea keckii life history characteristics of this taxon. the primary constituent elements of population locations (CNDDB 2001); Unoccupied areas provide areas into critical habitat for S. keckii are: soil survey maps (U.S. Soil which populations might expand, (1) Minimally shaded annual Conservation Service (SCS) 1971, 1982; provide connectivity or linkage between grasslands in the Sierra foothills U.S. Department of Agriculture, Natural colonies within a unit, and support containing open patches in which Resource Conservation Service (NRCS) populations of pollinators and seed competing vegetation is relatively 2001); aerial photographs (CNES/SPOT dispersal organisms. Both occupied and sparse; and Image Corporation (SPOT) 2001); unoccupied areas that are proposed as (2) Serpentine soils, or other soils topological features (United States critical habitat are essential to the which tend to restrict competing Geological Survey (USGS) 1990); conservation of the species. vegetation. features of underlying rock (California Primary Constituent Elements Criteria Used to Identify Critical Department of Conservation (CDC) Habitat 2000) and vegetation cover (USGS In accordance with section 3(5)(A)(i) 1990). We also examined geological of the Act and regulations at 50 CFR We identified critical habitat areas maps not available on GIS (California 424.12, in determining which areas to essential to the conservation of Sidalcea Division of Mines and Geology (CDMG) propose as critical habitat, we consider keckii in the three primary locations 1991, 1992). those physical and biological features where it currently occcurs or has been The Piedra and Mine Hill proposed (primary constituent elements) that are known to occur: the Piedra area of critical habitat units are occupied by essential to the conservation of the Fresno County, the Mine Hill area of both above-ground plants and seed species and that may require special Tulare County, and near White River in banks, depending on the time of year management considerations or Tulare County. We are proposing to (i.e., plants are not observable above- protection. These include but are not designate sufficient critical habitat at ground all year). Although above- limited to: space for individual and each site to maintain self-sustaining ground plants have not been observed population growth and for normal populations of S. keckii at each of these on the White River unit since the 1930s, behavior; food, water, air, light, locations. a complete survey has not been done minerals or other nutritional or We are including the White River site due to the lack of access to lands in physiological requirements; cover or in our proposal, despite the fact that private ownership. ‘‘Occupied’’ is shelter; sites for germination or seed Sidalcea keckii has not been defined here as an any area with above- dispersal; and habitats that are protected documented there in recent years. The ground Sidalcea keckii plants or a S. from disturbance or are representative of White River population is the type keckii seed bank of indefinite boundary. the historic geographical and ecological location where the plant was originally Current surveys need not have distributions of a species. discovered and contains the primary identified above-ground individuals for Much of what is known about the constituent elements that would support the area to be considered occupied specific physical and biological the species. It is one of the extremely because plants may still exist at the site requirements of Sidalcea keckii is few locations where S. keckii has ever as part of the seed bank (Given 1994). described in the Background section of been observed and may be occupied by All occupied sites contain some or all of this proposed rule. The proposed a seed bank. We have evidence from the the primary constituent elements and critical habitat is designed to provide Piedra site, where S. keckii was are essential to the conservation of the sufficient habitat to maintain self- undocumented from 1939 until its species, as described below. sustaining populations of S. keckii rediscovery in 1998 (Cypher 1998; Each of the critical habitat units likely throughout its range and to provide CNDDB 2001), that such rediscoveries includes areas that are unoccupied by those habitat components essential for are possible for S. keckii. The Piedra site Sidalcea keckii. ‘‘Unoccupied’’ is the conservation of the species. These supports the largest known S. keckii defined here as an area that contains no habitat components provide for: (1) population, with 500 to 1,000 plants above-ground S. keckii plants and that Individual and population growth, when last surveyed (Cypher 1998). Even is unlikely to contain a viable seed including sites for germination, if the species is not rediscovered at the bank. Determining the specific areas pollination, reproduction, pollen and White River site, we still believe the site that this taxon occupies is difficult seed dispersal, and seed dormancy; (2) is essential to the conservation of the because, depending on the climate and areas that allow gene flow and provide species because it is the most

VerDate May<23>2002 17:02 Jun 18, 2002 Jkt 197001 PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 E:\FR\FM\19JNP1.SGM pfrm17 PsN: 19JNP1 Federal Register / Vol. 67, No. 118 / Wednesday, June 19, 2002 / Proposed Rules 41673

appropriate site for a reintroduction to Hill population do not overlie boundaries to the same underlying rock occur. The combination of limited serpentine rock, nor are they type as at the population site (CDC range, few populations, and restricted intrinsically restrictive to plant growth 2000). We then used recent aerial habitat makes S. keckii susceptible to (CDMG 1991; Jennings 1977; SCS 1982; photos (SPOT 2001), topological maps extinction or extirpation due to random CDC 2000; E. Russell, pers. comm., (USGS 1990), and discussions with events, such as fire, disease, or other 2002). The botanists who discovered the experts familiar with the areas (Rosalie occurrences (Shaffer 1981, 1987; population, however, characterized the Faubion, U.S. Bureau of Reclamation Primack 1993, Meffe and Carroll 1994). site as a ‘‘serpentine rock outcrop’’ (BOR), pers. comm., 2002; Chuck Peck, Such events are a concern when the (Kirkpatrick 1992). Although geologic Sierra Foothill Conservancy, pers. number of populations or geographic maps do not list serpentine rock at the comm., 2002) to eliminate large distribution of a species are severely site itself, they do show it within a mile contiguous areas which were noticeably limited, as is the case with S. keckii. to the northeast and southwest (CDMG more overgrown or which were not Establishment of a third location for S. 1991; Jennings 1977; CDC 2000). The grassland and, therefore, not suitable keckii is likely to prove important in site itself sits over ‘‘precenazoic habitat for the species. reducing the risk of extinction due to metasedimentary and metavolcanic In order to provide determinable legal such catastrophic events. rocks of great variety’’ (Jennings 1977). descriptions of the critical habitat Despite the association of Sidalcea Hence, it appears likely that the site boundaries, we then used an overlayed keckii with serpentine soils (Kirkpatrick consists of a pocket habitat of serpentine 100 meter grid to establish Universal 1992; Cypher 1998), only a portion of S. soil which was too small to be mapped Transverse Mercator (UTM) North keckii plants at the Piedra site grow on (E. Russell, pers. comm., 2002). SCS soil American Datum of 1983 (NAD 83) soil identified by SCS maps as being maps tend to list only the dominant soil coordinates which, when connected, serpentine derived (the soil: Fancher type in an area. Other such pocket provided the critical habitat unit extremely stony loam) (SCS 1971; NRCS habitats may exist within the same boundaries. We include the legal 2001). Other patches at Piedra, as well combination of soil and underlying description for each unit in the as the type locality White River rock. population, grow on what SCS maps Proposed Regulation Promulgation indicate are Cibo clays, while the Mine Mapping section, below. Hill population of S. keckii grows in an We delineated the proposed critical In designating critical habitat, we area mapped as Coarsegold rock outcrop habitat units by creating data layers in made an effort to avoid developed areas, complex (NRCS 2001). Neither of these a GIS format. First, we identified the such as housing developments and latter two soil types normally derive locations of the Sidalcea keckii agricultural fields, that are unlikely to from serpentine rock (SCS 1971, 1982), populations using information from the contribute to the conservation of although the underlying geology may CNDDB (2001), and published and Sidalcea keckii. However, we did not contain it. Geologic maps, for example, unpublished documents from those who map critical habitat in sufficient detail show the Cibo soils of the Piedra located the known populations to exclude all developed areas, or other population straddling an arm of (Kirkpatrick 1992; Stebbins 1992). In the lands unlikely to contain the primary underlying serpentine rock (CDMG case of the Piedra population, where S. constituent elements essential for the 1991; CDC 2000). The soils may, keckii grew in more than one patch, we conservation of S. keckii. Areas within therefore, in fact be derived from such identified the locations and the boundaries of the mapped units, rock or include pockets of soil derived approximate dimensions of the various such as buildings, roads, parking lots, from such rock, or the amount of patches as well, based on information railroads, airport runways and other serpentine rock may be too small to be provided by SFC (C. Peck, in litt., 2002). paved areas, lawns, and other urban mapped (E. Russell, NRCS, pers. comm., We mapped populations or patch landscaped areas will not contain one or 2002). Available geologic maps fail to locations from all sites on USGS 7.5’ more of the primary constituent show any serpentine rock in the vicinity quadrangle topological maps (USGS elements. Federal actions limited to of the type locality White River 1990) to obtain information on these areas, therefore, would not trigger population (CDMG 1992; Jennings 1977; elevation, slope, and recognizable a section 7 of the Act consultation, CDC 2000). However, Cibo soils have an surface features. We then used soil unless they affect the species or primary intrinsic tendency to dry out, harden, survey maps (NRCS 2001) to restrict constituent elements in adjacent critical and form deep cracks during the potential critical habitat to the habitat. summer which can discourage the boundaries of the basic soil types on Proposed Critical Habitat Designation growth of some plants (E. Russell, pers. which the populations grow. In areas comm., 2002). Hence, these soils would where the presence of S. keckii could Lands proposed for critical habitat limit vegetation competition in favor of not be explained by the properties of the designation are under private and S. keckii. mapped soil type alone (such as the Federal jurisdiction. The approximate Based on available soils and geologic Coarsegold soils at the Mine Hill areas of proposed critical habitat by maps, the Coarsegold soils of the Mine location), we mapped critical habitat land ownership are shown in Table 1.

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

Unit Federal State Private Total

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

Totals ...... 3 ha (7ac) 0 435 ha (1,078 ac) 438 ha (1,085 ac)

VerDate May<23>2002 17:02 Jun 18, 2002 Jkt 197001 PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 E:\FR\FM\19JNP1.SGM pfrm17 PsN: 19JNP1 41674 Federal Register / Vol. 67, No. 118 / Wednesday, June 19, 2002 / Proposed Rules

The proposed critical habitat areas Unit 2: Mine Hill or extirpation from a significant portion constitute our best assessment at this Unit 2 is about 3 km (2 mi) south of of its range due to random events, such time of the areas that are essential for Success Dam and 5 km (3 mi) east of as fire, disease, or other occurrences the conservation of Sidalcea keckii. The Porterville in Tulare County and (Shaffer 1981, 1987; Primack 1993, three critical habitat units include the contains 86 ha (213 ac), all of which are Meffe and Carroll 1994). Such events are only two locations where S. keckii has on privately owned land. Unit 2 a concern when the number of been observed since the 1930’s and the encompasses a single known patch of populations or geographic distribution type locality, which may be occupied by Sidalcea keckii, which contained of a species are severely limited, as is a seed bank, and is the most appropriate approximately 60 plants when last the case with S. keckii. Establishment of location to consider for reintroduction. surveyed in 1992. At the request of the a third location for S. keckii is likely to A brief description of each critical landowner, it has not been surveyed be an important component in reducing habitat unit is given below: since that time. Although the the risk of extinction due to such catastrophic events. This location also Unit 1: Piedra Coarsegold rock outcrop soils of the area are best suited to rangeland (SCS 1982), represents the southernmost extent of Unit 1 is on the western slopes of which is the current use of the area, the the known historical range of the Tivy Mountain in the Piedra area of site is zoned for mobile home species. southern Fresno County. It contains 206 development (Roberto Brady, Tulare Effects of Critical Habitat Designation ha (510 ac), of which 203 ha (503 ac) are County Planning Department, pers. privately owned and 3 ha (7 ac) comm., 1997). Section 7 Consultation managed by the BOR (R. Faubion, pers. This unit is important to the Section 7(a) of the Act requires comm., 2002). Of the privately owned conservation of the species because it is Federal agencies, including the Service, land, 77 ha (189 ac) of proposed critical one of the two known locations where to ensure that actions they fund, habitat is on the Tivy Mountain Reserve Sidalcea keckii plants have been authorize, permit, or carry out do not which is owned by SFC and established observed since the 1930’s. As is the case destroy or adversely modify critical for the conservation of Sidalcea keckii with Unit 1, when the number of habitat. Destruction or adverse and other rare plants. SFC uses managed populations or geographic distribution modification of critical habitat occurs grazing as a tool to reduce competing of a species are severely limited, when a Federal action directly or non-native grasses from S. keckii sites, possible extinction or extirpation due to indirectly alters critical habitat to the and monitors the plant as well (SFC random events become a concern. extent it appreciably diminishes the 2001). Another 6.5 ha (16 ac) of this unit Examples of random events that are a value of critical habitat for the occurs on a conservation easement held concern include fire and disease conservation of the species. Individuals, by SFC on privately owned land (Shaffer 1981, 1987; Primack 1993, organizations, States, local governments, adjacent to the reserve. Meffe and Carroll 1994). and other non-Federal entities are In 1998, surveys coordinated by the affected by the designation of critical Unit 3: White River BOR found 500 to 1,000 plants in the habitat only if their actions occur on area (Cypher 1998). Surveys conducted Unit 3 is located near the town of Federal lands, require a Federal permit, in 2000 and 2001 by the SFC found White River in southern Tulare County. license, or other authorization, or eight separate patches of Sidalcea keckii It contains 146 ha (362 ac), all of which involve Federal funding. growing on both Fancher and Cibo soils is private land. Unit 3 contains the Section 7(a) of the Act requires (C. Peck, in litt., 2002). Fancher soils are ‘‘type’’ location, specimens from which Federal agencies, including the Service, generally serpentine derived, while Cibo were used to first describe the species to evaluate their actions with respect to soils generally are not (SCS 1971). An in 1940 (Wiggins 1940). This site is the any species that is proposed or listed as arm of ultramafic (serpentine) rock only one not closely associated with endangered or threatened, and with underlies almost the entire area (CDC serpentine rock, but contains the respect to its critical habitat, if any is 2000), although not all of the known S. primary constituent elements that designated or proposed. Regulations keckii patches are located within the would support the species. This may be implementing this interagency known extent of the serpentine due to the presence of currently cooperation provision of the Act are substrate. unknown and unmapped serpentine codified at 50 CFR part 402. Section This unit is important to the areas, or it may be due to an increased 7(a)(4) of the Act requires Federal conservation of the species because it is ability to compete on non-serpentine agencies to confer with us on any action one of the two sites at which the species Cibo soils. that is likely to jeopardize the continued has been observed since the 1930’s. As noted above, the White River site existence of a species proposed for When the number of populations or is one of the extremely few locations listing, or result in destruction or geographic distribution of a species are where Sidalcea keckii has ever been adverse modification of proposed severely limited, as is the case when observed and may be occupied by a seed critical habitat. Conference reports plants have only been observed recently bank. Sidalcea keckii plants may still provide conservation recommendations at two locations, possible extinction or occur here, but none have been to assist the action agency in extirpation due to random events documented recently. Even if the eliminating conflicts that may be caused become a concern. Examples of random species is not rediscovered at the White by the proposed action. The events that are a concern include fire River site, we believe the site is conservation measures in a conference and disease (Shaffer 1981, 1987; essential to the conservation of the report are advisory. Primack 1993, Meffe and Carroll 1994). species. Because S. keckii has been We may issue a formal conference This unit is also important because it observed at the site, it is the most report, if requested by the Federal action includes the most northerly location appropriate site at which a agency. Formal conference reports known for S. keckii and the only reintroduction might be attempted. The include an opinion that is prepared location where above-ground plants combination of small range, few according to 50 CFR 402.14, as if the with maroon-centered flowers have populations, and restricted habitat species was listed or critical habitat been documented (Cypher 1998). makes S. keckii susceptible to extinction designated. We may adopt the formal

VerDate May<23>2002 17:02 Jun 18, 2002 Jkt 197001 PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 E:\FR\FM\19JNP1.SGM pfrm17 PsN: 19JNP1 Federal Register / Vol. 67, No. 118 / Wednesday, June 19, 2002 / Proposed Rules 41675

conference report as the biological a permit from the U.S. Army Corps of designation. Activities that may destroy opinion when the species is listed or Engineers (Corps) under section 404 of or adversely modify critical habitat critical habitat designated, if no the Clean Water Act (33 U.S.C. 1344 et would be those that alter the primary substantial new information or changes seq.), a section 10(a)(1)(B) of the Act constituent elements to the extent that in the action alter the content of the permit from the Service, or any other the value of critical habitat for the opinion (50 CFR 402.10(d)). activity requiring Federal action (i.e., conservation of Sidalcea keckii is If a species is listed or critical habitat funding or authorization from the appreciably reduced. We note that such is designated, section 7(a)(2) of the Act Federal Highways Administration or activities may also jeopardize the requires Federal agencies to ensure that Federal Emergency Management continued existence of the species. activities they authorize, fund, or carry Agency) will also continue to be subject Activities that, when carried out, out are not likely to jeopardize the to the section 7 consultation process. funded, or authorized by a Federal continued existence of such a species or Federal actions not affecting listed agency may directly or indirectly to destroy or adversely modify its species or critical habitat, and actions destroy or adversely modify critical critical habitat. If a Federal action may on non-Federal lands that are not habitat for Sidalcea keckii include, but affect a listed species or its critical federally funded, authorized, or are not limited to: habitat, the responsible Federal agency permitted do not require section 7 (1) Ground disturbances which (action agency) must enter into consultation. Not all of the areas within destroy or degrade primary constituent consultation with us. Through this these units are capable of supporting S. elements of the plant (e.g., clearing, consultation, the Federal action agency keckii or its primary constituent tilling, grading, construction, road would ensure that the permitted actions elements, and such areas would not be building, mining, etc); do not destroy or adversely modify subject to section 7 consultation. (2) Activities that directly or critical habitat. To properly portray the effects of indirectly affect Sidalcea keckii plants If we issue a biological opinion critical habitat designation, we must (e.g., herbicide application and off-road concluding that a project is likely to first compare the section 7 requirements vehicle use that could degrade the result in the destruction or adverse for actions that may affect critical habitat on which the species depends, modification of critical habitat, we also habitat with the requirements for incompatible introductions of non- provide ‘‘reasonable and prudent actions that may affect a listed species. native herbivores, incompatible grazing alternatives’’ to the project, if any are Section 7 ensures that actions funded, management during times when S. identifiable. Reasonable and prudent authorized, or carried out by Federal keckii is producing flowers or seeds, alternatives are defined at 50 CFR agencies are not likely to jeopardize the etc.); 402.02 as alternative actions identified continued existence of a listed species, (3) Encouraging the growth of during consultation that can be or destroy or adversely modify the listed Sidalcea keckii competitors (e.g., implemented in a manner consistent species’ critical habitat. Actions likely widespread fertilizer application); and with the intended purpose of the action, to jeopardize the continued existence of (4) Activities which significantly that are consistent with the scope of the a species are those that would degrade or destroy Sidalcea keckii Federal agency’s legal authority and appreciably reduce the likelihood of the pollinator populations (e.g., pesticide jurisdiction, that are economically and species’ survival and recovery. Actions applications). technologically feasible, and that the likely to ‘‘destroy or adversely modify’’ If you have questions regarding Director believes would avoid the critical habitat are those that would whether specific activities will likelihood of jeopardizing the continued appreciably reduce the value of critical constitute destruction or adverse existence of listed species, or resulting habitat for the recovery of the listed modification of critical habitat, contact in the destruction or adverse species. the Field Supervisor, Sacramento Fish modification of critical habitat. Common to both definitions is an and Wildlife Office (see FOR FURTHER Reasonable and prudent alternatives can appreciable detrimental effect on the INFORMATION CONTACT section). Requests vary from slight project modification to recovery of a listed species. Given the for copies of the regulations on listed extensive redesign or relocation of the similarity of these definitions, actions wildlife, and inquiries about project. likely to destroy or adversely modify prohibitions and permits may be Regulations at 50 CFR 402.16 require critical habitat would almost always addressed to the U.S. Fish and Wildlife Federal agencies to reinitiate result in jeopardy to the species Service, Branch of Endangered Species, consultation on previously reviewed concerned, particularly when the 911 NE. 11th Ave., Portland, OR 97232 actions under certain circumstances, species is present in the area of the (telephone 503/231–2063; facsimile including instances where critical proposed action. When the species is 503/231–6243). habitat is subsequently designated and present in an area, designation of the Federal agency has retained critical habitat for Sidalcea keckii is not Relationship to Habitat Conservation discretionary involvement, or control likely to result in regulatory Plans and Other Planning Efforts has been retained, or is authorized by requirements above those already in Currently, no habitat conservation law. Consequently, some Federal place due to the presence of the listed plans (HCPs) exist that include Sidalcea agencies may request reinitiation of species. When the species is not present keckii as a covered species. In the event consultation or conference with us on in an area, designation of critical habitat that future HCPs covering S. keckii are actions for which formal consultations for S. keckii may result in an additional developed within the boundaries of has been completed, if those actions regulatory burden when a Federal nexus designated critical habitat, we will work may affect designated critical habitat or exists. with applicants to ensure that the HCPs adversely modify or destroy proposed Section 4(b)(8) of the Act requires us provide for protection and management critical habitat. to evaluate briefly and describe, in any of habitat areas essential for the Activities that may affect Sidalcea proposed or final regulation that conservation of this species. This will keckii or its critical habitat will require designates critical habitat, those be accomplished by either directing section 7 of the Act consultation. activities involving a Federal action that development and habitat modification Activities on private lands that require may adversely modify such habitat or to nonessential areas, or appropriately a permit from a Federal agency, such as that may be affected by such modifying activities within essential

VerDate May<23>2002 17:02 Jun 18, 2002 Jkt 197001 PO 00000 Frm 00036 Fmt 4702 Sfmt 4702 E:\FR\FM\19JNP1.SGM pfrm17 PsN: 19JNP1 41676 Federal Register / Vol. 67, No. 118 / Wednesday, June 19, 2002 / Proposed Rules

habitat areas so that such activities will (1) The reasons why any habitat Individual respondents may request that not adversely modify the primary should or should not be determined to we withhold their home address from constituent elements. The HCP be critical habitat as provided by section the rulemaking record, which we will development process would provide an 4 of the Act, including whether the honor to the extent allowable by law. In opportunity for more intensive data benefits of designation will outweigh some circumstances, we would collection and analysis regarding the any threats to the species due to withhold from the rulemaking record a use of particular habitat areas by S. designation; respondent’s identity, as allowable by keckii. The process would also enable (2) Specific information on the law. If you wish us to withhold your us to conduct detailed evaluations of the amount and distribution of Sidalcea name and/or address, you must state importance of such lands to the long- keckii and its habitat, and which habitat this prominently at the beginning of term survival of the species in the is essential to the conservation of this your comment. However, we will not context of constructing a system of species and why; consider anonymous comments. To the interlinked habitat blocks configured to (3) Land use designations and current extent consistent with applicable law, promote the conservation of the species or planned activities in the subject areas we will make all submissions from through application of the principles of and their possible impacts on proposed organizations or businesses, and from conservation biology. critical habitat; individuals identifying themselves as (4) Any foreseeable economic or other We will provide technical assistance representatives or officials of impacts resulting from the proposed and work closely with applicants organizations or businesses, available designation of critical habitat, in throughout the development of any for public inspection in their entirety. particular, any impacts on small entities future HCPs to identify lands essential Comments and materials received will or families; be available for public inspection, by for the long-term conservation of S. (5) Economic and other values keckii and appropriate management for appointment, during normal business associated with designating critical hours at the above address. those lands. Furthermore, we will habitat for Sidalcea keckii such as those complete intra-Service consultation on derived from non-consumptive uses Peer Review our issuance of section 10(a)(1)(B) (e.g., hiking, camping, bird-watching, permits for these HCPs to ensure permit In accordance with our policy enhanced watershed protection, published on July 1, 1994 (59 FR issuance will not destroy or adversely improved air quality, increased soil modify critical habitat. 34270), we will solicit the expert retention, ‘‘existence values,’’ and opinions of at least three appropriate Economic Analysis reductions in administrative costs); and and independent specialists regarding (6) Whether our approach to critical this proposed rule. The purpose of such Section 4(b)(2) of the Act requires us habitat designation could be improved to designate critical habitat on the basis review is to ensure listing decisions are or modified in any way to provide for based on scientifically sound data, of the best scientific and commercial greater public participation and information available, and to consider assumptions, and analyses. We will understanding, or to assist us in send these peer reviewers copies of this the economic and other relevant accommodating public concern and impacts of designating a particular area proposed rule immediately following comments. publication in the Federal Register. We as critical habitat. We may exclude areas If you wish to comment, you may from critical habitat upon a will invite these peer reviewers to submit your comments and materials comment, during the public comment determination that the benefits of such concerning this proposal by any one of exclusions outweigh the benefits of period, on the specific assumptions and several methods: (1) You may submit conclusions regarding the proposed specifying such areas as critical habitat. written comments and information to We cannot exclude such areas from designation of critical habitat. the Field Supervisor at the address We will consider all comments and critical habitat when such exclusion provided in the ADDRESSES section information received during the 60-day will result in the extinction of the above; (2) You may also comment via comment period on this proposed rule species. the electronic mail (e-mail) to during preparation of a final _ We will conduct an analysis of the fw1kecks [email protected]. rulemaking. Accordingly, the final economic impacts of designating these Please submit e-mail comments as an decision may differ from this proposal. proposed areas as critical habitat prior ASCII file avoiding the use of special to a final determination. When characters and any form of encryption. Public Hearing completed, we will announce the Please also include ‘‘Attn: [1018–AG93] The Act provides for one or more availability of the draft economic and your name and return address in public hearings on this proposal, if analysis with a notice in the Federal your e-mail message.’’ If you do not requested. Requests for public hearings Register, and we will open a public receive a confirmation from the system must be made at least 15 days prior to comment period on the draft economic that we have received your e-mail the close of the public comment period. analysis and the proposed rule at that message, contact us directly by calling We will schedule public hearings on time. our Sacramento Fish and Wildlife Office this proposal, if any are requested, and Public Comments Solicited at phone number 916–414–6600. Please announce the dates, times, and places of note that the Internet address those hearings in the Federal Register We intend that any final action ‘‘[email protected]’’ and local newspapers at least 15 days resulting from this proposal will be as will be closed out at the termination of prior to the first hearing. accurate and as effective as possible. the public comment period; and (3) You Therefore, we solicit comments or may hand-deliver comments to our Clarity of the Rule suggestions from the public, other Sacramento office (see ADDRESSES Executive Order 12866 requires each concerned governmental agencies, the section above). agency to write regulations and notices scientific community, industry, or any Our practice is to make comments, that are easy to understand. We invite other interested party concerning this including names and home addresses of your comments on how to make this proposed rule. We particularly seek respondents, available for public review proposed rule easier to understand, comments concerning: during regular business hours. including answers to questions such as

VerDate May<23>2002 17:02 Jun 18, 2002 Jkt 197001 PO 00000 Frm 00037 Fmt 4702 Sfmt 4702 E:\FR\FM\19JNP1.SGM pfrm17 PsN: 19JNP1 Federal Register / Vol. 67, No. 118 / Wednesday, June 19, 2002 / Proposed Rules 41677

the following: (1) Are the requirements Under the Regulatory Flexibility Act areas. While SBREFA does not in the proposed rule clearly stated? (2) (5 U.S.C. 601 et seq., as amended by the explicitly define ‘‘substantial number,’’ Does the proposed rule contain Small Business Regulatory Enforcement the Small Business Administration, as technical language or jargon that Act (SBREFA) of 1996), whenever an well as other Federal agencies, have interferes with the clarity? (3) Does the agency is required to publish a notice of interpreted this to represent an impact format of the proposed rule (grouping rulemaking for any proposed or final on 20 percent or greater of the number and order of sections, use of headings, rule, it must prepare and make available of small entities in any industry. In paragraphing, etc.) aid or reduce its for public comment a regulatory some circumstances, especially with clarity? (4) Is the description of the flexibility analysis that describes the critical habitat designations of limited notice in the SUPPLEMENTARY effects of the rule on small entities (i.e., extent, we may aggregate across all INFORMATION section of the preamble small businesses, small organizations, industries and consider whether the helpful in understanding the proposed and small government jurisdictions). total number of small entities affected is rule? (5) What else could we do to make However, no regulatory flexibility substantial. In estimating the numbers the notice easier to understand? analysis is required if the head of the of small entities potentially affected, we Send a copy of any comments that agency certifies the rule will not have a also considered whether their activities concern how we could make this notice significant economic impact on a have any Federal involvement. easier to understand to: Office of substantial number of small entities. Designation of critical habitat only Regulatory Affairs, Department of the SBREFA amended the Regulatory affects activities conducted, funded, or Interior, Room 7229, 1849 C Street, NW, Flexibility Act (RFA) to require Federal permitted by Federal agencies. Some Washington, DC 20240. You may e-mail agencies to provide a statement of the kinds of activities are unlikely to have your comments to this address: factual basis for certifying that the rule any Federal involvement and so will not [email protected]. will not have a significant economic be affected by critical habitat effect on a substantial number of small designation. Required Determinations entities. SBREFA also amended the RFA Designation of critical habitat only Regulatory Planning and Review to require a certification statement. We affects activities conducted, funded, or are hereby certifying that this proposed permitted by Federal agencies, non- In accordance with Executive Order rule will not have a significant effect on Federal activities are not affected by the 12866, this document is a significant a substantial number of small entities. designation if they lack a Federal nexus. rule and was reviewed by the Office of The following discussion explains our In areas occupied by Sidalcea keckii, Management and Budget (OMB). The rationale for making this assertion. Federal agencies funding, permitting, or Service is preparing a draft economic According to the Small Business implementing activities are already analysis of this proposed action. The Administration (http://www.sba.gov/ required, through consultation with us Service will use this analysis to meet size/), small entities include small under section 7 of the Act, to avoid the requirement of section 4(b)(2) of the organizations, such as independent non- jeopardizing the continued existence of ESA to determine the economic profit organizations, and small S. keckii. If this critical habitat consequences of designating the specific governmental jurisdictions, including designation is finalized, Federal areas as critical habitat and excluding school boards and city and town agencies also must ensure, also through any area from critical habitat if it is governments that serve fewer than consultation with us, that their activities determined that the benefits of such 50,000 residents, as well as small do not destroy or adversely modify exclusion outweigh the benefits of businesses. Small businesses include designated critical habitat. However, for specifying such areas as part of the manufacturing and mining concerns the reasons discussed above, we do not critical habitat, unless failure to with fewer than 500 employees, believe this will result in any additional designate such area as critical habitat wholesale trade entities with fewer than regulatory burden on Federal agencies will lead to the extinction of Sidalcea 100 employees, retail and service or their applicants. keckii. This analysis will be available businesses with less than $5 million in In unoccupied areas, or areas of for public comment before finalizing annual sales, general and heavy uncertain occupancy, designation of this designation. The availability of the construction businesses with less than critical habitat could trigger additional draft economic analysis will be $27.5 million in annual business, review of Federal activities under announced in the Federal Register. special trade contractors doing less than section 7 of the Act, and may result in additional requirements on Federal Regulatory Flexibility Act (5 U.S.C. 601 $11.5 million in annual business, and activities to avoid destroying or et seq.) agricultural businesses with annual sales less than $750,000. To determine adversely modifying critical habitat. This discussion is based upon the if potential economic impacts to these However, outside the existing information regarding potential small entities are significant, we developed areas, land use on the economic impact that is available to the consider the types of activities that majority of the proposed critical habitat Service at this time. This assessment of might trigger regulatory impacts under is agricultural, such as livestock grazing economic effect may be modified prior this rule as well as the types of project and farming. Should a federally funded, to final rulemaking based upon modifications that may result. In permitted, or implemented project be development and review of the general, the term ‘‘significant economic proposed that may affect designated economic analysis being prepared impact’’ is meant to apply to a typical critical habitat, we will work with the pursuant to section 4(b)(2) of the ESA small business firm’s business Federal action agency and any and E.O. 12866. This analysis is for the operations. applicant, through section 7 purposes of compliance with the In determining whether this rule consultation, to identify ways to Regulatory Flexibility Act and does not could ‘‘significantly affect a substantial implement the proposed project while reflect the position of the Service on the number of small entities’’, the economic minimizing or avoiding any adverse type of economic analysis required by analysis first determined whether effect to the species or critical habitat. New Mexico Cattle Growers Assn. v. critical habitat could potentially affect a In our experience, the vast majority of U.S. Fish & Wildlife Service 248 F.3d ‘‘substantial number’’ of small entities such projects can be successfully 1277 (10th Cir. 2001). in counties supporting critical habitat implemented with at most minor

VerDate May<23>2002 17:02 Jun 18, 2002 Jkt 197001 PO 00000 Frm 00038 Fmt 4702 Sfmt 4702 E:\FR\FM\19JNP1.SGM pfrm17 PsN: 19JNP1 41678 Federal Register / Vol. 67, No. 118 / Wednesday, June 19, 2002 / Proposed Rules

changes that avoid significant economic scope of authority of the Federal agency affect energy supplies, distribution, or impacts to project proponents. involved in the consultation. As we use. Therefore, this action is not a In general, two different mechanisms have a very limited consultation history significant energy action and no in section 7 consultations could lead to for Sidalcea keckii, we can only Statement of Energy Effects is required. additional regulatory requirements for describe the general kinds of actions Unfunded Mandates Reform Act (2 one small business, on average, that may that may be identified in future U.S.C. 1501 et seq.) be required to consult with us each year reasonable and prudent alternatives. regarding their project’s impact on The kinds of actions that may be The Service will use the economic Sidalcea keckii and its habitat. First, if included if future reasonable and analysis to evaluate consistency with we conclude, in a biological opinion, prudent alternatives become necessary, the Unfunded Mandates Reform Act (2 that a proposed action is likely to include conservation set-asides, U.S.C. 1501 et seq.). jeopardize the continued existence of a management of competing non-native Takings species or adversely modify its critical species, restoration of degraded habitat, habitat, we can offer ‘‘reasonable and construction of protective fencing, and In accordance with Executive Order prudent alternatives.’’ Reasonable and regular monitoring. These are based on 12630 (‘‘Government Actions and prudent alternatives are alternative our understanding of the needs of the Interference with Constitutionally actions that can be implemented in a species and the threats it faces, as Protected Private Property Rights’’), we manner consistent with the scope of the described in the final listing rule and have analyzed the potential takings Federal agency’s legal authority and this proposed critical habitat implications of proposing to designate jurisdiction, that are economically and designation. approximately 438 ha (1,085 ac) of lands technologically feasible, and that would It is likely that a developer could in Fresno and Tulare counties, avoid jeopardizing the continued modify a project or take measures to California as critical habitat for Sidalcea existence of listed species or resulting in protect Sidalcea keckii. Based on the keckii in a takings implication adverse modification of critical habitat. types of modifications and measures assessment. This preliminary A Federal agency and an applicant may that have been implemented in the past assessment concludes that this proposed elect to implement a reasonable and for plant species, a developer may take rule does not pose significant takings prudent alternative associated with a such steps as installing fencing or re- implications. However, we have not yet biological opinion that has found aligning the project to avoid sensitive completed the economic analysis for jeopardy or adverse modification of areas. The cost for implementing these this proposed rule. Once the economic critical habitat. An agency or applicant measures for one project is expected to analysis is available, we will review and could alternatively choose to seek an be of the same order of magnitude as the revise this preliminary assessment as exemption from the requirements of the total cost of the consultation process, warranted. Act or proceed without implementing i.e., approximately $10,000. It should be Federalism the reasonable and prudent alternative. noted that developers likely would However, unless an exemption were already be required to undertake such In accordance with Executive Order obtained, the Federal agency or measures due to regulations under the 13132, the rule does not have significant applicant would be at risk of violating California Environmental Quality Act. Federalism effects. A Federalism section 7(a)(2) of the Act if it chose to These measures are not likely to result assessment is not required. In keeping proceed without implementing the in a significant economic impact to with Department of the Interior policy, reasonable and prudent alternatives. project proponents. we requested information from, and Secondly, if we find that a proposed In summary, we have considered coordinated development of this action is not likely to jeopardize the whether this rule would result in a proposed critical habitat designation continued existence of a listed animal significant economic effect on a with, appropriate State resource species, we may identify reasonable and substantial number of small entities. We agencies in California. The designation prudent measures designed to minimize have determined, for the above reasons, of critical habitat in areas currently the amount or extent of take and require that it will not affect a substantial occupied by Sidalcea keckii imposes no the Federal agency or applicant to number of small entities. Furthermore, additional restrictions to those currently implement such measures through non- we believe that the potential compliance in place and, therefore, has little discretionary terms and conditions. We costs for the remaining number of small incremental impact on State and local may also identify discretionary entities that may be affected by this rule governments and their activities. The conservation recommendations will not be significant. Therefore, we are designation of critical habitat in designed to minimize or avoid the certifying that the proposed designation unoccupied areas may require section 7 adverse effects of a proposed action on of critical habitat for Sidalcea keckii is of the Act consultation on non-Federal listed species or critical habitat, help not expected to have a significant lands (where a Federal nexus occurs) implement recovery plans, or to develop adverse impact on a substantial number that might otherwise not have occurred. information that could contribute to the of small entities. Thus, an initial However, there will be little additional recovery of the species. flexibility analysis is not required. impact on State and local governments Based on our experience with and their activities because all but one consultations pursuant to section 7 of Executive Order 13211 of the proposed critical habitat areas are the Act for all listed species, virtually On May 18, 2001, the President issued occupied. The designation may have all projects—including those that, in an Executive Order on regulations that some benefit to these governments in their initial proposed form, would result significantly affect energy supply, that the areas essential to the in jeopardy or adverse modification distribution, and use. Executive Order conservation of the species are more determinations in section 7 13211 requires agencies to prepare clearly defined, and the primary consultations-can be implemented Statements of Energy Effects when constituent elements of the habitat successfully with, at most, the adoption undertaking certain actions. Although necessary to the survival of the species of reasonable and prudent alternatives. this proposed rule is a significant are identified. While this definition and These measures, by definition, must be regulatory action under Executive Order identification does not alter where and economically feasible and within the 12866, it is not expected to significantly what federally sponsored activities may

VerDate May<23>2002 17:02 Jun 18, 2002 Jkt 197001 PO 00000 Frm 00039 Fmt 4702 Sfmt 4702 E:\FR\FM\19JNP1.SGM pfrm17 PsN: 19JNP1 Federal Register / Vol. 67, No. 118 / Wednesday, June 19, 2002 / Proposed Rules 41679

occur, it may assist these local National Environmental Policy Act References Cited governments in long-range planning, We have determined we do not need A complete list of all references cited rather than waiting for case-by-case in this proposed rule is available upon section 7 consultations to occur. to prepare an Environmental Assessment and/or an Environmental request from the Sacramento Fish and Civil Justice Reform Impact Statement as defined by the Wildlife Office (see ADDRESSES section). National Environmental Policy Act of In accordance with Executive Order Author 1969 in connection with regulations 12988, the Department of the Interior’s The primary author of this notice is adopted pursuant to section 4(a) of the Office of the Solicitor has determined Glen Tarr, Sacramento Fish and Wildlife that this rule does not unduly burden Endangered Species Act, as amended. Office (see ADDRESSES section). We published a notice outlining our the judicial system and meets the List of Subjects in 50 CFR Part 17 requirements of sections 3(a) and 3(b)(2) reason for this determination in the of the Order. We are proposing to Federal Register on October 25, 1983 Endangered and threatened species, designate critical habitat in accordance (48 FR 49244). This proposed Exports, Imports, Reporting and with the provisions of the Endangered determination does not constitute a recordkeeping requirements, Species Act. The rule uses standard major Federal action significantly Transportation. affecting the quality of the human property descriptions and identifies the Proposed Regulation Promulgation primary constituent elements within the environment. designated areas to assist the public in Accordingly, we propose to amend Government-to-Government part 17, subchapter B of chapter I, title understanding the habitat needs of Relationship With Tribes Sidalcea keckii. 50 of the Code of Federal Regulations as In accordance with the President’s set forth below: Paperwork Reduction Act of 1995 (44 memorandum of April 29, 1994, U.S.C. 3501 et seq.) PART 17—[AMENDED] ‘‘Government-to-Government Relations This rule does not contain any new with Native American Tribal 1. The authority citation for part 17 collections of information that require Governments’’ (59 FR 22951), Executive continues to read as follows: OMB approval under the Paperwork Order 13175, and the Department of the Authority: 16 U.S.C. 1361–1407; 16 U.S.C. Reduction Act. This rule will not Interior’s manual at 512 DM 2, we 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– impose new record-keeping or reporting readily acknowledge our responsibility 625, 100 Stat. 3500; unless otherwise noted. requirements on State or local to communicate meaningfully with 2. In § 17.12(h) revise the entry for governments, individuals, businesses, or recognized Federal Tribes on a ‘‘Sidalcea keckii,’’ under ‘‘FLOWERING organizations. An agency may not government-to-government basis. The PLANTS,’’ to read as follows: conduct or sponsor, and a person is not proposed critical habitat for Sidalcea required to respond to, a collection of keckii does not contain any Tribal lands § 17.12 Endangered and threatened plants. information unless it displays a or lands that we have identified as * * * * * currently valid OMB control number. impacting Tribal trust resources. (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(b) NA checkermallow.

*******

3. In § 17.96, as proposed to be (2) The primary constituent elements actions limited to those areas, therefore, amended at 65 FR 66865, November 7, of critical habitat for Sidalcea keckii are would not trigger a consultation under 2000, amend paragraph (b) by adding an the habitat components that provide: section 7 of the Act unless they may entry for Sidalcea keckii in alphabetical (i) Minimally shaded annual affect the species and/or primary order under Family Malvaceae to read grasslands in the Sierra foothills constituent elements in adjacent critical as follows: containing open patches in which habitat. competing vegetation is relatively (3) Critical Habitat Map Units. § 17.96 Critical habitat—plants. sparse; and (ii) Serpentine soils, or other soils (i) Data layers defining map units * * * * * ′ which tend to restrict competing were created on a base of USGS 7.5 (b) * * * vegetation. quadrangles, and proposed critical habitat units were then mapped using Family Malvaceae: Sidalcea keckii (iii) Existing man-made features and Universal Transverse Mercator (UTM) (Keck’s checkermallow) structures, such as buildings, roads, railroads, airports, other paved areas, coordinates. (1) Critical habitat units are depicted lawns, and other urban landscaped (ii) Critical Habitat Map Units—Index for Fresno and Tulare counties, areas, do not contain one or more of the Map Follows: California, on the maps below. primary constituent elements. Federal BILLING CODE 4310–55–P

VerDate May<23>2002 17:02 Jun 18, 2002 Jkt 197001 PO 00000 Frm 00040 Fmt 4702 Sfmt 4702 E:\FR\FM\19JNP1.SGM pfrm17 PsN: 19JNP1 41680 Federal Register / Vol. 67, No. 118 / Wednesday, June 19, 2002 / Proposed Rules

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

VerDate May<23>2002 17:02 Jun 18, 2002 Jkt 197001 PO 00000 Frm 00041 Fmt 4702 Sfmt 4702 E:\FR\FM\19JNP1.SGM pfrm17 PsN: 19JNP1 EP19JN02.002 Federal Register / Vol. 67, No. 118 / Wednesday, June 19, 2002 / Proposed Rules 41681

(5) Map Unit 2: Mine Hill Unit, Tulare coordinates (E,N): 326600, 3988600; 326700, 3989600; 327300, 3989600; County, California 326500, 3988600; 326200, 3988900; 327400, 3989500; 327400, 3989300; (i) From USGS 1:24,000 quadrangle 326100, 3989100; 326200, 3989200; 327200, 3989000; 327100, 3988900; Success Dam, California; land bounded 326200, 3989300; 326300, 3989400; 326700, 3988700; 326600, 3988600. by the following UTM11 NAD83 326500, 3989400; 326500, 3989500; (ii) Map Unit 2 Map Follows:

VerDate May<23>2002 17:02 Jun 18, 2002 Jkt 197001 PO 00000 Frm 00042 Fmt 4702 Sfmt 4702 E:\FR\FM\19JNP1.SGM pfrm17 PsN: 19JNP1 EP19JN02.003 41682 Federal Register / Vol. 67, No. 118 / Wednesday, June 19, 2002 / Proposed Rules

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

VerDate May<23>2002 17:02 Jun 18, 2002 Jkt 197001 PO 00000 Frm 00043 Fmt 4702 Sfmt 4702 E:\FR\FM\19JNP1.SGM pfrm17 PsN: 19JNP1 EP19JN02.004 Federal Register / Vol. 67, No. 118 / Wednesday, June 19, 2002 / Proposed Rules 41683

* * * * * Dated: June 13, 2002. Craig Manson, Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 02–15430 Filed 6–18–02; 8:45 am] BILLING CODE 4310–55–C

VerDate May<23>2002 17:02 Jun 18, 2002 Jkt 197001 PO 00000 Frm 00044 Fmt 4702 Sfmt 4702 E:\FR\FM\19JNP1.SGM pfrm17 PsN: 19JNP1 EP19JN02.005