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a listed species and that may require that could result from closure of these the Act requires that Federal agencies special management considerations or areas to OHV use. ensure that actions they fund, authorize, protection. If the proposed rule is made We solicit data and comments from or carry out are not likely to result in the final, section 7 of the Act will prohibit the public on the draft economic destruction or adverse modification of destruction or adverse modification of analysis, as well as on all aspects of the critical habitat. The regulatory effect of critical habitat by any activity funded, proposed rule to designate critical the critical habitat designation does not authorized, or carried out by any habitat for Astragalus magdalenae var. extend beyond those activities funded, Federal agency. Federal agencies peirsonii. We may revise the proposal, permitted, or carried out by Federal proposing actions affecting areas or its supporting documents, to agencies. State or private actions, with designated as critical habitat must incorporate or address new information no Federal involvement, are not consult with us on the effects of their received during the comment period. In affected. proposed actions, pursuant to section particular, we may exclude an area from Section 4 of the Act requires us to 7(a)(2) of the Act. critical habitat if we determine that the consider economic, national security, Section 4 of the Act requires that we benefits of excluding the area outweigh and other relevant impacts when consider economic and other relevant the benefits of including the area as specifying any particular area as critical impacts prior to making a final decision critical habitat, provided such exclusion habitat. We will conduct an analysis of on what areas to designate as critical will not result in the extinction of the the economic impacts of designating habitat. We have prepared a draft species. these areas, in a manner that is economic analysis for the proposal to Author consistent with the ruling of the 10th designate certain areas as critical habitat Circuit Court of Appeals in N.M. Cattle for Astragalus magdalenae var. The primary author of this document Growers Assn v. USFWS. We hereby peirsonii. This analysis considers the is the Carlsbad Fish and Wildlife Office solicit data and comments from the potential economic effects of (see ADDRESSES section). public on all aspects of this proposal, designating critical habitat for A. The authority for this action is the including data on economic and other magdalenae var. peirsonii. It also Endangered Species Act of 1973, as impacts of the designation. We may considers the economic effects of amended (16 U.S.C. 1531 et seq.). revise this proposal prior to final protective measures taken as a result of Dated: March 30, 2004. designation to incorporate or address listing the species under the Act, and Paul Hoffman, new information received during the other Federal, State, and local laws that Acting Assistant Secretary for Fish and comment period. aid habitat conservation in areas Wildlife and Parks. DATES: We will accept comments until proposed for designation. [FR Doc. 04–7694 Filed 4–5–04; 8:45 am] June 7, 2004. Public hearing requests Limitations on future OHV access BILLING CODE 4310–55–P must be received by May 21, 2004. within the ISDRA will depend on the ADDRESSES: If you wish to comment, outcome of future management you may submit your comments and DEPARTMENT OF THE INTERIOR decisions. Future impacts could range materials concerning this proposal by from no effects to complete closure of Fish and Wildlife Service any one of several methods: critical habitat areas within the eight 1. You may submit written comments distinct BLM management areas. Pre- 50 CFR Part 17 and information to the Field Supervisor, critical habitat economic benefits Ventura Fish and Wildlife Office, U.S. enjoyed by OHV users within the RIN 1018–AI78 Fish and Wildlife Service, 2493 Portola proposed critical habitat designation Road, Suite B, Ventura, CA, 93003. Endangered and Threatened Wildlife range from $0 for the North Algodones 2. You may also send comments by Wilderness (currently closed to OHV and Plants; Proposed Designation of Critical Habitat for Astragalus electronic mail (e-mail) to use) and Dune Buggy Flats management [email protected]. In the event area (not proposed for designation) to jaegerianus (Lane Mountain milk- vetch) that our internet connection is not $4.9 million per year for that portion of functional, please submit your the Glamis management area proposed AGENCY: Fish and Wildlife Service, comments by the alternate methods for designation. If all of the areas Interior. mentioned above. proposed for designation within the ACTION: Proposed rule. 3. You may hand-deliver comments to ISDRA were closed to OHV use, the our Ventura Fish and Wildlife Office, annual consumer surplus impact would SUMMARY: We, the U.S. Fish and U.S. Fish and Wildlife Service, 2493 range from $8.9 million per year to $9.9 Wildlife Service, propose to designate Portola Road, Suite B, Ventura, CA million per year. critical habitat pursuant to the 93003. While future closures of areas are not Endangered Species Act of 1973, as All comments and materials received, anticipated to occur by either the amended (Act), for Astragalus as well as supporting documentation Service or BLM, in the past the ISDRA jaegerianus (Lane Mountain milk- used in preparation of this proposed has experienced closures of areas to vetch). Approximately 29,522 acres (ac) rule, will be available for public OHV use to provide protection to (11,947 (ha)) of land fall within the inspection, by appointment, during Astragalus magdalenae var. peirsonii. boundaries of the proposed critical normal business hours at the above Given the uncertainty of future habitat designation. Proposed critical address. management decisions, the economic habitat is located in the Mojave Desert analysis provides estimates of the in San Bernardino County, California. FOR FURTHER INFORMATION CONTACT: potential total economic contribution of Critical habitat identifies specific Connie Rutherford, Ventura Fish and each ISDRA management area and that areas that are essential to the Wildlife Office, U.S. Fish and Wildlife portion of each management area conservation of a listed species, and that Service, 2493 Portola Road, Suite B, proposed as critical habitat. These total may require special management Ventura, CA 93003 (telephone (805) economic contribution estimates considerations or protection. If this 644–1766; facsimile (805) 644–3958). represent the upper bound of impacts proposal is made final, section 7(a)(2) of SUPPLEMENTARY INFORMATION:

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Designation of Critical Habitat Provides Service to an ever-increasing series of be critical habitat as provided by section Little Additional Protection to Species court orders and court-approved 4 of the Act, including whether the In 30 years of implementing the settlement agreements, compliance with benefit of designation will outweigh any Endangered Species Act, the Service has which now consumes nearly the entire threats to the species due to designation, found that the designation of statutory listing program budget. This leaves the specifically, any lands being considered Service with little ability to prioritize its under a conservation plan; critical habitat provides little additional activities to direct scarce listing (2) With specific reference to the protection to most listed species, while resources to the listing program actions recent amendments to sections 4(b)(2) of consuming significant amounts of with the most biologically urgent the Act, we request information available conservation resources. The species conservation needs. regarding impacts to national security Service’s present system for designating The consequence of the critical associated with proposed designation of critical habitat has evolved since its habitat litigation activity is that limited critical habitat; original statutory prescription into a listing funds are used to defend active (3) Specific information on the process that provides little real lawsuits, to respond to Notices of Intent amount and distribution of Astragalus conservation benefit, is driven by (NOIs) to sue relative to critical habitat, jaegerianus habitat, and what habitat is litigation and the courts rather than and to comply with the growing number essential to the conservation of the biology, limits our ability to fully of adverse court orders. As a result, species and why; evaluate the science involved, consumes listing petition responses, the Service’s (4) Land use designations and current enormous agency resources, and own proposals to list critically or planned activities in the subject areas imposes huge social and economic imperiled species, and final listing and their possible impacts on proposed costs. The Service believes that determinations on existing proposals are critical habitat; additional agency discretion would all significantly delayed. (5) Any foreseeable economic or other allow our focus to return to those The accelerated schedules of court potential impacts resulting from the actions that provide the greatest benefit ordered designations have left the proposed designation—in particular, to the species most in need of Service with almost no ability to any impacts on small entities; and protection. provide for adequate public (6) Whether our approach to designating critical habitat could be Role of Critical Habitat in Actual participation or to ensure a defect-free improved or modified in any way to Practice of Administering and rulemaking process before making provide for greater public participation Implementing the Act decisions on listing and critical habitat proposals due to the risks associated and understanding, or to assist us in While attention to and protection of with noncompliance with judicially- accommodating public concerns and habitat is paramount to successful imposed deadlines. This in turn fosters comments. conservation actions, we have a second round of litigation in which If you wish to comment, you may consistently found that, in most those who fear adverse impacts from submit your comments and materials circumstances, the designation of critical habitat designations challenge concerning this proposal by any one of critical habitat is of little additional those designations. The cycle of several methods (see ADDRESSES value for most listed species, yet it litigation appears endless, is very section). In the event that our internet consumes large amounts of conservation expensive, and in the final analysis connection is not functional, please resources. Sidle (1987) stated, ‘‘Because provides relatively little additional submit your comments by the alternate the ESA can protect species with and protection to listed species. methods mentioned above. Please without critical habitat designation, The costs resulting from the submit Internet comments in ASCII file critical habitat designation may be designation include legal costs, the cost format and avoid the use of special redundant to the other consultation of preparation and publication of the characters or any form of encryption. requirements of section 7.’’ Currently, designation, the analysis of the Please also include ‘‘Attn: [RIN 1018– only 445 species or 36 percent of the economic effects and the cost of AI78]’’ in your e-mail subject header 1,244 listed species in the United States requesting and responding to public and your name and return address in under the jurisdiction of the Service comment, and in some cases the costs the body of your message. If you do not have designated critical habitat. We of compliance with NEPA, all are part receive a confirmation from the system address the habitat needs of all 1,244 of the cost of critical habitat that we have received your Internet listed species through conservation designation. None of these costs result message, contact us directly by calling mechanisms such as listing, section 7 in any benefit to the species that is not our Ventura Fish and Wildlife Office at consultations, the section 4 recovery already afforded by the protections of phone number 805–644–1766. Please planning process, the section 9 the Act enumerated earlier, and they note that the Internet address protective prohibitions of unauthorized directly reduce the funds available for ‘‘[email protected]’’ will be take, section 6 funding to the States, and direct and tangible conservation actions. closed out at the termination of the the section 10 incidental take permit public comment period. process. The Service believes that it is Public Comments Solicited Our practice is to make comments, these measures that may make the We intend any final action resulting including names and home addresses of difference between extinction and from this proposal to be as accurate and respondents, available for public review survival for many species. as effective as possible. Therefore, during regular business hours. comments or suggestions from the Individual respondents may request that Procedural and Resource Difficulties in public, other concerned governmental we withhold their home addresses from Designating Critical Habitat agencies, the scientific community, the rulemaking record, which we will We have been inundated with industry, or any other interested party honor to the extent allowable by law. lawsuits for our failure to designate concerning this proposed rule are There also may be circumstances in critical habitat, and we face a growing hereby solicited. Comments particularly which we would withhold from the number of lawsuits challenging critical are sought concerning: rulemaking record a respondent’s habitat determinations once they are (1) The reasons why any habitat identity, as allowable by law. If you made. These lawsuits have subjected the should or should not be determined to wish us to withhold your name and/or

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address, you must state this primarily in climatically favorable Although the aboveground portion of prominently at the beginning of your years. the plant dies back each year, comment. However, we will not Production of pods and the number of individuals of Astragalus jaegerianus consider anonymous comments. We seeds per pod can be highly variable, persist as a perennial rootstock through will make all submissions from both in the field and in greenhouse the dry season. The perennial rootstock organizations or businesses, and from conditions. Seed pods can contain as may also allow Astragalus jaegerianus individuals identifying themselves as many as 18 seeds, but more typically 4 to survive occasional dry years, while representatives or officials of to 14 seeds (Sharifi et al. 2003). In the longer periods of drought might be organizations or businesses, available field, seeds that do not germinate during endured by remaining dormant (Beatley for public inspection in their entirety. the subsequent year become part of the in Bagley 1999). In another federally Comments and materials received will seed bank. Seed germination rates in the listed species, Osterhout milk-vetch be available for public inspection, by field may resemble the low germination (Astragalus osterhoutii), which occurs appointment, during normal business rate of 5 percent that is observed in in sagebrush steppe habitat in Colorado, hours at the above address. germination trials of unscarified (outer individuals have remained dormant for cover is broken) seed (Sharifi in litt. up to 4 years (Dawson in litt. 1999). Background 2004). Although a substantial Astragalus We listed Astragalus jaegerianus Seeds collected from Astragalus jaegerianus seedbank most likely exists, (Lane Mountain milk-vetch) as jaegerianus range in size from 1.5 to establishment of new individuals may threatened on October 6, 1998 (63 FR over 5.0 milligrams in weight (Sharifi in not occur with great frequency, and may 53596) due to threats of increasing litt. 2003). The relatively large size of pose a large bottleneck for the continued habitat loss and degradation. It is our these seed compared to many desert persistence of the species. In addition to intent, in this proposed rule, to reiterate annual species would make them an the low seed germination rates and discuss only those topics directly attractive food source to ants and other discussed earlier, several other relevant to the development and large insects, small mammals, and birds observations contribute to this theory. designation of critical habitat or relevant (Brown et al. 1979). These animal First, we have some indication that information obtained since the final species would also be the most likely individuals may have a long life span; listing. Please refer to our final listing vectors to disperse A. jaegerianus seeds in one long-term plot, individuals have rule for a more detailed discussion of within and between populations. Sharifi been tracked for a period of 13 years. the plant’s taxonomic history and (pers. comm. 2004) confirmed the Out of a total of 9 individuals, 1 has physical description. presence of A. jaegerianus seeds within persisted over a period of 13 years, 1 has native ant coppices. persisted 12 years, 1 has persisted 10 Astragalus jaegerianus (Lane Limited observations on Astragalus Mountain milk-vetch) is a member of years, 1 has persisted 6 years, 1 has jaegerianus pollinators were carried out persisted 5 years, and 2 have persisted the pea family (Fabaceae) that is in 2003 (Kearns 2003). Observations 3 years (Rutherford in litt. 2004). restricted in its range to a portion of the were made on two plants in one Secondly, very few seedlings have been west Mojave Desert that is north of population for seven days. Although 30 observed. During the extensive surveys Barstow, in San Bernardino County, different insect species were observed of 2001, approximately 2 percent of the California. The plant overwinters as a visiting flowers in the area, only 4 4,964 individuals observed were taproot. The stems often grow in a visited A. jaegerianus flowers. The most thought to be seedlings (Charis 2002). zigzag pattern, usually up through low frequent pollinator was Anthidium However, the actual number of bushes, referred to in this proposed rule dammersi, a solitary bee in the seedlings may have been even lower, as host shrubs. megachilid family (Megachilidae). because resprouts from established This species can be considered a Anthidium dammersi occurs in the individuals were most likely mistaken hemicryptophyte (partially hidden), Mojave and Colorado deserts of for seedlings (Sharifi pers. comm. 2004). because it is usually often found California, Nevada, and Arizona (Kearns Because the population of Astragalus growing within the canopy of a host 2003), and will fly up to 0.6 mi (1 km) jaegerianus in any given year is shrub. Like other species of Astragalus, away from their nest; although if floral comprised primarily of established the roots of A. jaegerianus contain resources are abundant, they will individuals, maintaining the seed bank nodules that fix nitrogen. Gibson et al. decrease their flight distances ensures that the populations are (1998) postulate that A. jaegerianus may accordingly (Doug Yanega, University of replenished with new individuals. have a mutually beneficial relationship California Riverside, pers. comm. 2003). After the early collections in 1939 and with the host shrub, wherein the host Kearns (2003) found that the Anthidium 1941, the plant was not collected again shrub provides trellis-like support for A. individuals he inspected carried pollen until it was rediscovered in 1985 at the jaegerianus, and benefits from higher primarily from phacelia (Phacelia sites referred to as Brinkman Wash, levels of soil nitrogen derived from the distans) (82 percent of individuals) and Montana Mine, and Paradise Wash. litter and roots of A. jaegerianus. Astragalus jaegerianus (64 percent). The Throughout the 1990s, hundreds more Presumably, as with other perennial three occasional visitors to A. plants were located in these areas (Lee species in the Mojave Desert, the plant jaegerianus were a hover fly (Eupeodes and Ro Consulting Engineers 1986, begins regrowth in the late fall or volucris), a large anthophrid bee Brandt et al. 1993, Prigge 2000a) in winter, once sufficient soil moisture is (Anthophora sp.), and the white-lined surveys sponsored by the Department of available. Individuals go dormant in the sphinx moth (Hyles lineata). The extent the Army’s (Army) National Training late spring or summer when soil to which Astragalus jaegerianus relies Center at Fort Irwin (NTC). Surveys in moisture has been depleted (Bagley on these and other pollinators to 1999 established that the Brinkman 1999). Blooming typically occurs in achieve seed set is not yet known. Wash—Montana Mine site supports one April and May. However, if climatic However, in a greenhouse experiment, large continuous population (Prigge et conditions are unfavorable, the plants 25 percent of pollinated A. jaegerianus al. 2000a). In 1992, the third and may dessicate prior to flowering or flowers set seed, while only 5 percent of southernmost population was found 9 setting seed. Therefore, substantial nonpollinated flowers set seed (Sharifi mi (14 km) to the south, on Coolgardie contributions to the seedbank may occur pers. comm. 2004). Mesa, a few miles west of Lane

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Mountain; this site closely approximates Astragalus jaegerianus is most populations have been more useful in the type locality. frequently found on shallow soils describing the plant community that A. Extensive surveys funded by the derived from Jurassic or Cretaceous jaegerianus grows in. Common to all Army were conducted in 2001 (Charis granitic bedrock. A small portion of the four sites is the remarkably high 2002). The 2001 surveys contributed individuals located to date occur on diversity of desert shrub species, while greatly to our knowledge of the overall soils derived from diorite or gabbroid the relative frequency of these species distribution and abundance of bedrock (Charis 2002). In one location varies slightly from site to site. The Astragalus jaegerianus in the three on the west side of the Coolgardie site, shrub species that occur in the highest populations. In addition, a fourth plants were found on granitic soils densities at A. jaegerianus sites include population was located during these overlain by scattered rhyolitic cobble, turpentine bush (Thamnosma surveys on NTC lands in an area gravel, and sand. Soils tend to be montana), white bursage (Ambrosia referred to as Goldstone. Approximately shallower immediately adjacent to milk- dumosa), Mormon tea (Ephedra 20 percent of this population is on lands vetch plants than in the surrounding nevadensis), Cooper goldenbush leased by the Army to the National landscape; at the Montana Mine site, (Ericameria cooperi var. cooperi), Aeronautics and Space Administration rotten, highly weathered granite bedrock California buckwheat (Eriogonum (NASA) for tracking facilities. Much of was reached within 2 in (6 cm) of the fasciculatum var. polifolium), the most recent information included in soil surface near A. jaegerianus plants brittlebush (Encelia farinosa or E. this proposed rule is taken from the (Fahnestock 1999). The topography actoni), desert aster (Xylorrhiza Army survey report (Charis 2002). where A. jaegerianus most frequently tortifolia), goldenheads Individuals of Astragalus jaegerianus occurs is on low ridges and rocky low (Acamptopappus spherocephalus), are concentrated in four geographically hills where bedrock is exposed at or spiny hop-sage (Grayia spinosa), distinct areas. In this rule, a population near the surface and the soils are coarse cheesebush (Hymenoclea salsola), refers to a concentration of Astragalus or sandy (Prigge 2000b; Charis 2002). winter fat (Kraschenninikovia lanata), individuals, a population site refers to Most of the individuals found to date and paper bag bush (Salazaria the land that supports the population, occur between 3,100 and 4,200 feet (ft) mexicana). and a unit refers to specific sites that are (945 to 1,280 meters (m)) in elevation Astragalus jaegerianus utilizes a being considered for critical habitat (Charis 2002). At lower-lying elevations, variety of species as host shrubs. designation. The four populations of A. the alluvial soils appear to be too fine Individuals of A. jaegerianus are rarely jaegerianus are arrayed more or less to support A. jaegerianus, and at higher observed on bare ground, and more linearly along a 20-mile-long axis that elevations the soils may not be frequently within dead shrubs, leading trends in a northeasterly-to- developed enough to support A. to speculation that the milk-vetch may southwesterly direction. The names of jaegerianus (Prigge 2000b; Charis 2002). have outlived its host shrub. Host the four populations, from northeast to Prigge (pers. comm. 2003) examined shrubs may also be important in southwest, and land ownership are as and found no relationship between the providing appropriate microhabitat follows—the Goldstone population abundance and distribution of conditions for A. jaegerianus seed occurs on NTC, lands including a Astragalus jaegerianus and levels of germination and seedling establishment portion leased to NASA; the Brinkman micronutrients or heavy metals, such as (Charis 2003). Wash-Montana Mine population occurs selenium, in the soil. Another focus of At the Brinkman-Montana Mine site, entirely on NTC lands; the Paradise pending research will be on measuring Prigge et al. (2000b) showed that the Wash population occurs primarily on transpiration rates and gas exchange difference between host shrub Army lands, with a small portion of the rates for A. jaegerianus; these rates preference by Astragalus jaegerianus remaining population occurring on would be an indicator as to whether the and the frequency with which these Bureau lands intermixed with private taproots of A. jaegerianus are tapping shrubs occurred in the plant community lands along the southwestern fringe of into a water source stored within was statistically significant, indicating the population; the Coolgardie fractured granite bedrock, thus allowing that some shrubs are more suitable as population occurs primarily on Bureau- it to utilize water not available to other hosts than others. During Army surveys managed lands, with a number of small plants within the community (Prigge et in 2001, host shrubs were noted for privately owned parcels scattered al. 2002). 4,899 individuals of A. jaegerianus. Six within. At the landscape level, the plant shrub species (Thamnosma montana, Based on the information available, community within which Astragalus Ambrosia dumosa, Eriogonum including historic records and current jaegerianus occurs can be described as fasciculatum var. polifolium, Ericameria location information, there is nothing to Mojave mixed woody scrub (Holland cooperi var. cooperi, Ephedra suggest that Astragalus jaegerianus was 1998), Mojave creosote bush scrub nevadensis) and dead shrubs accounted ever more widespread than currently (Holland 1988; Cheatham and Haller for 75 percent of the host shrub records. known. The Army surveys in 2001 1975; Thorne 1976), or creosote bush The cumulative total number of (Charis 2002) included reconnaissance series (Sawyer and Keeler-Wolf 1995). Astragalus jaegerianus individuals surveys on habitat that appeared These broad descriptions, however, are found from all surveys to date is suitable but outside the known range of lacking in detail that is useful in approximately 5,800 (Charis 2002). A. jaegerianus, including the Mount describing the communities where A. Charis (2002) attempted to extrapolate General area near Barstow and in the jaegerianus is found. While creosote the total number of individuals by Alvord Mountains 20 mi (32 km) to the bush (Larrea tridentata) is present in the factoring in the amount of intervening east. In addition, since 1996, rare plant landscape, its presence and abundance suitable habitat between transects in surveys have been conducted on the is not as extensive in the specific areas confirmed occupied habitat, along with Naval Air Weapons Station at China where A. jaegerianus occurs, an ‘‘observability’’ factor ranging from Lake 6 miles (4.8 km) to the northwest presumably because these soils are 30 percent to 70 percent; this results in of the known distribution (Charis 2002; shallower than optimal depth for estimations of the total number of Silverman in litt. 2003). None of these creosote bush. individuals ranging from 20,524 to other surveys have resulted in the Data gathered from the four sites that 47,890. The actual number of location of any other populations. support Astragalus jaegerianus individuals observed during the surveys

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at the four population sites during the be larger than was thought at the time Coolgardie Mesa Conservation Area climatically favorable year of 2001 are of listing. In addition, a substantial (CMCA); it will comprise approximately as follows—Goldstone, 555; Brinkman change occurred in land management— 13,354 ac (5,404 ha) at the Coolgardie Wash-Montana Mine, 1,487; Paradise on January 11, 2002, President George site. This area is currently designated as Wash, 1,667; Coolgardie, 2,014 (Charis W. Bush signed the Fort Irwin Military land-use class M by the Bureau, which 2002). Low numbers of individuals Lands Withdrawal Act of 2001 (Pub. L. denotes moderate use. Both observed in prior and subsequent years 107–107) into law. This legislation conservation areas would be managed to (2000, 2002, and 2003) suggest that this withdrew approximately 110,000 ac maintain habitat for A. jaegerianus with species may well follow the pattern of (44,516 ha) of land, formerly managed the following proposed management other perennial desert species that rely by the Bureau, for military use. prescriptions: Implement a minerals on favorable climatic conditions that do Subsequent surveys and geographic withdrawal, require a 5 to 1 mitigation not occur with any predictable information system (GIS) analysis ratio for land-disturbing projects, and frequency (Beatley 1974, Kearns 2003; indicated that the proposed expansion limit total ground disturbance to 1 B. Prigge, pers. comm. 2003). area covers 118,674 ac (48,026 ha). percent. Once the WMP is finalized, the The longterm viability of Astragalus Military use of the withdrawn lands will County of San Bernardino will be the jaegerianus depends on numerous not begin until compliance with the lead entity in preparing a draft Habitat variables, including life history National Environmental Policy Act Conservation Plan (HCP) that will characteristics (e.g., longevity), (NEPA) and a consultation pursuant to address conservation measures that will population characteristics (e.g., rates of section 7(a)(2) of the Act with the be proposed for private lands within the recruitment and mortality), and carrying Service have been completed. area covered by the WMP. capacity of the habitat. The need to Two of the four populations of The Bureau has also recently maintain high-quality habitat for A. Astragalus jaegerianus (Brinkman completed a consultation with the jaegerianus is important to its long-term Wash—Montana Mine, Paradise Wash Service for a route designation project in persistence. Aside from the sandy populations) occur almost entirely on the western Mojave Desert area. The granidiorite soils and the mixed desert withdrawn lands within the NTC project includes a proposal to reduce scrub community which have been expansion. The Army is proposing to the number of roads within the described in the previous sections, we establish two conservation areas for A. proposed CMCA that are designated as believe that the other characteristics jaegerianus. The first conservation area open to travel; other roads will be important to ensure the maintenance of will comprise 2,470 ac (1,000 ha) at the proposed for closure and restoration the ecologic processes within A. Goldstone site. The second conservation (Service 2003a). jaegerianus habitat include habitat of area, referred to as Paradise Valley The impacts from military activities sufficient size and quality to maintain Conservation Area, will comprise 4,302 within the boundaries of NTC on pollinators; and habitat of sufficient size ac (1,741 ha) along the southwestern Astragalus jaegerianus and its habitat and quality to maintain seed dispersal boundary of NTC. Therefore, all of one will vary, depending on the type of mechanisms. and a portion of a second population of terrain and the level and frequency of At the time Astragalus jaegerianus the three populations on NTC lands are use. The Army (Charis 2003) anticipates was listed as endangered in 1998, in areas that will be placed in the following types of impacts— threats to the species included dry wash conservation areas. individuals of A. jaegerianus could be mining, recreational off-highway vehicle Finally, since the early 1990s, the killed or damaged through direct use, military maneuvers on Army lands Bureau has acted as the lead agency in contact with wheeled and tracked at NTC and NTC expansion lands, and developing the West Mojave Plan vehicles, construction, digging and the lack of regulatory mechanisms that (WMP); the planning area for this earth-moving activities, temporary would offer formal protection for the multiagency effort covers 9,360,000 ac bivouacs, helicopter landings, the species or its habitat. Stochastic (3,787,900 ha) of the western Mojave movement of soldiers on foot, and other extinction (extinction from random Desert. These lands include activities in the project area. Habitat for natural events) is also a concern, and approximately 3,300,000 ac (1,335,477 A. jaegerianus could be affected by could result from such events as ha) of lands administered by the Bureau, substantially reducing or eliminating flooding (that could wash substantial 3,000,000 ac (1,214,070 ha) of private host plants within the project area, soil amounts of the seedbank into unsuitable lands, and 102,000 ac (41,278 ha) of erosion and compaction, and the loss of habitat), prolonged drought (that could State lands. The remaining lands lie cryptobiotic soil crusts that help reduce the abundance of viable seed in within areas administered by the stabilize the soil surface and assist with the seed bank), or unforeseen events Department of Defense and National water transport to plant roots. Army including wildfire, wildfire suppression Park Service; these agencies are not (Charis 2003) anticipates that in ‘‘high- activities, or pipeline breaks or repairs. formally part of the WMP. The draft intensity’’ use areas, up to 100 percent Since the final rule was published, environmental impact report/statement of individuals and habitat could be lost; new information concerning the status (EIR/S) for the WMP was published in in ‘‘moderate-intensity’’ use areas, up to of Astragalus jaegerianus and the nature May 2003. As part of the Bureau’s 60 percent of individuals could be lost; of its threats is available. The 2001 preferred alternative, they propose to in ‘‘low-intensity’’ use areas, up to 20 surveys have provided better establish two conservation areas for percent of individuals and habitat could information on the distribution of the Astragalus jaegerianus. The first be lost; and in proposed conservation species. The extent of the three conservation area, referred to as the areas, the only loss of individuals or populations that were previously known West Paradise Conservation Area, will habitat expected to occur is from has been greatly expanded, and the comprise 1,243 ac (503 ha), and will be straying military vehicles or personnel. fourth population (Goldstone) was contiguous with the Army’s Paradise Windblown dust that has been loosened discovered during these surveys. Also, Valley Conservation Area along the from the soil surface due to military the size of the populations as southwestern boundary of NTC. This activities may also affect A. jaegerianus represented by the number of area is currently designated as land-use by inhibiting photosynthesis and individuals that can be observed in a class L by the Bureau, which denotes transpiration in individuals, altering favorable climatic year is now known to limited use. The second is the suitable germination sites, and altering

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the effectiveness of pollinator visits and necessary to bring an endangered or a the species unless the best available of seed dispersal by wildlife species. threatened species to the point at which scientific and commercial data Other nonmilitary activities may also listing under the Act is no longer demonstrate that those areas are occur within NTC. Recently, a fiber- necessary. essential for the conservation needs of optic cable was installed through the The designation of critical habitat the species. Goldstone population. Although the does not affect land ownership or Section 4(b)(2) of the Act requires that installation consisted of trenching establish a refuge, wilderness, reserve, we take into consideration the economic through Astragalus jaegerianus habitat, preserve, or other conservation area. It impact, the impact on national security, no individuals were affected (Service does not allow government or public and any other relevant impact of 2003b). Other activities not related to access to private lands. Under section 7 specifying any particular area as critical military training, such as road of the Act, Federal agencies must habitat. We may exclude areas from construction or maintenance activities, consult with us on activities they critical habitat designation when the may be also be proposed in the future undertake, fund, or permit that may benefits of exclusion outweigh the by the Army. affect critical habitat and lead to its benefits of including the areas within destruction or adverse modification. critical habitat, provided the exclusion Previous Federal Action However, the Act prohibits will not result in extinction of the The final rule listing A. jaegerianus as unauthorized take of listed species and species. an endangered species was published requires consultation for activities that Our Policy on Information Standards on October 6, 1998 (63 FR 53596). may affect them, including habitat Under the Endangered Species Act, On November 15, 2001, our decision alterations, regardless of whether published in the Federal Register on not to designate critical habitat for critical habitat has been designated. We July 1, 1994 (59 FR 34271), provides Astragalus jaegerianus and seven other have found that the designation of criteria, establishes procedures, and plant and wildlife species was critical habitat provides little additional provides guidance to ensure that our challenged in Southwest Center for protection to most listed species. decisions represent the best scientific Biological Diversity and California To be included in a critical habitat and commercial data available. It Native Plant Society v. Norton (Case No. designation, habitat must be either a requires our biologists, to the extent 01–CV–2101–IEG (S.D.Cal.). On July 1, specific area within the geographic area consistent with the Act and with the use 2002, the court ordered the Service to occupied by the species on which are of the best scientific and commercial reconsider its not prudent found those physical or biological data available, to use primary and determination, and propose critical features essential to the conservation of original sources of information as the habitat, if prudent, for the species by the species (primary constituent basis for recommendations to designate September 15, 2003, and a final critical elements, as defined at 50 CFR critical habitat. When determining habitat designation, if prudent, no later 424.12(b)) and which may require which areas are critical habitat, a than September 15, 2004. However, the special management considerations or primary source of information should be Service exhausted the funding protections, or be specific areas outside the listing package for the species. appropriated by Congress to work on of the geographic area occupied by the Additional information may be obtained critical habitat designations in 2003 species which are determined to be from a recovery plan, articles in peer- prior to completing the proposed rule. essential to the conservation of the reviewed journals, conservation plans On September 8, 2003, the court issued species. Section 3(5)(C) of the Act states developed by States and counties or an order extending the publication date that not all areas that can be occupied other entities that develop HCPs, of the proposed critical habitat by a species should be designated as scientific status surveys and studies, designation for A. jaegerianus to April critical habitat unless the Secretary biological assessments, or other 1, 2004, and the final designation to determines that all such areas are unpublished materials and expert April 1, 2005. In light of Natural essential to the conservation of the opinion or personal knowledge. Resources Defense Council v. U.S. species. Our regulations (50 CFR Section 4 of the Act requires that we Department of the Interior, 113 F.3d 424.12(e)) also state that, ‘‘The Secretary designate critical habitat on the basis of 1121 (9th Cir. 1997), and the diminished shall designate as critical habitat areas what we know at the time of threat of overcollection, the Service has outside the geographic area presently designation. Habitat is often dynamic, reconsidered its decision and has occupied by the species only when a and species may move from one area to determined that it is prudent to designation limited to its present range another over time. Furthermore, we designate critical habitat for the species. would be inadequate to ensure the recognize that designation of critical conservation of the species.’’ habitat may not include all of the Critical Habitat Regulations at 50 CFR 424.02(j) define habitat areas that may eventually be Section 3(5)(A) of the Act defines special management considerations or determined to be necessary for the critical habitat as—(i) the specific areas protection to mean any methods or recovery of the species. For these within the geographic area occupied by procedures useful in protecting the reasons, critical habitat designations do a species, at the time it is listed in physical and biological features of the not signal that habitat outside the accordance with the Act, on which are environment for the conservation of designation is unimportant or may not found those physical or biological listed species. When we designate be required for recovery. features (I) essential to the conservation critical habitat, we may not have the Areas that support populations, but of the species and (II) that may require information necessary to identify all are outside the critical habitat special management considerations or areas that are essential for the designation, will continue to be subject protection; and (ii) specific areas conservation of the species. to conservation actions implemented outside the geographic area occupied by Nevertheless, we are required to under section 7(a)(1) of the Act and to a species at the time it is listed, upon designate those areas we consider to be the regulatory protections afforded by a determination that such areas are essential, using the best information the section 7(a)(2) jeopardy standard, as essential for the conservation of the available to us. Accordingly, we do not determined on the basis of the best species. ‘‘Conservation’’ means the use designate critical habitat in areas available information at the time of the of all methods and procedures that are outside the geographic area occupied by action. Federally funded or permitted

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projects affecting listed species outside conservation partnerships and national species. The County of San Bernardino their designated critical habitat areas security. is the lead agency for preparing the may still result in jeopardy findings in In our critical habitat designations we specific portion of the habitat some cases. Similarly, critical habitat have used both the provisions outlined conservation plan that would be in designations made on the basis of the in sections 3(5)(A) and 4(b)(2) of the Act effect for this portion of the planning best available information at the time of to evaluate those specific areas area. The habitat conservation plan may designation will not control the proposed for designation as critical not contain specific measures to direction and substance of future habitat and those areas which are conserve A. jaegerianus on private recovery plans, habitat conservation subsequently finalized (i.e., designated). lands; however, both components of the plans, or other species conservation We have applied the provisions of these WMP target these lands for acquisition planning efforts if new information sections of the Act to lands essential to and subsequent management for the available to these planning efforts calls the conservation of the subject species conservation of the species. We will for a different outcome. to evaluate and either exclude from final conduct an economic analysis that critical habitat or not include in includes potential economic effects of Relationships to Sections 3(5)(A) and proposed critical habitat. Lands in the actions proposed in the WMP, and 4(b)(2) of the Act which we have either excluded from or we will consider the results of the Section 3(5)(A) of the Act defines not included in critical habitat based on economic analysis and the adequacy of critical habitat as the specific areas those provisions include those covered the WMP in the conservation of A. within the geographic area occupied by by: (1) Legally operative HCPs that cover jaegerianus in our final critical habitat the species on which are found those the species, and provide assurances that determination. physical and biological features (I) the conservation measures for the The Sikes Act Improvement Act of essential to the conservation of the species will be implemented and 1997 (Sikes Act) requires each military species and (II) which may require effective; (2) draft HCPs that cover the installation that includes land and water special management considerations or species, have undergone public review suitable for the conservation and protection. As such, for an area to be and comment, and provide assurances management of natural resources to designated as critical habitat for a that the conservation measures for the complete, by November 17, 2001, an species it must meet both provisions of species will be implemented and Integrated Natural Resources the definition. In those cases where an effective (i.e., pending HCPs); (3) Tribal Management Plan (INRMP). An INRMP area does not provide those physical conservation plans that cover the integrates implementation of the and biological features essential to the species and provide assurances that the military mission of the installation with conservation of the species, it has been conservation measures for the species stewardship of the natural resources our policy not to include them in will be implemented and effective; (4) found there. Each INRMP includes an designated critical habitat. Likewise, if State conservation plans that provide assessment of the ecological needs on assurances that the conservation the installation, including the need to we believe that an area determined to be measures for the species will be provide for the conservation of listed biologically essential has an adequate implemented and effective; and (5) Fish species; a statement of goals and conservation management plan that and Wildlife Service Comprehensive priorities; a detailed description of covers the species and provides for Conservation Plans that provide management actions to be implemented adaptive management sufficient to assurances that the conservation to provide for these ecological needs; conserve the species, then special measures for the species will be and a monitoring and adaptive management and protection are not implemented and effective. management plan. We consult with the needed. Therefore, these areas do not As discussed above, the Bureau is military on the development and meet the second provision of the leading the development of the WMP; implementation of INRMPs for definition and are also not proposed as the WMP includes the federal action of installations with listed species. critical habitat. Examples of amending the Bureau’s California Desert Section 318 of the fiscal year 2004 conservation management plans that we Conservation Area Plan and the National Defense Authorization Act consider when designating critical development of a habitat conservation (Pub. L. 108–136) amended the Act to habitat include Habitat Conservation plan for non-federal lands within the address the relationship of INRMPs to Plans (HCPs) for nonmilitary areas. planning area. Conservation of A. critical habitat. We are proposing to Further, section 4(b)(2) of the Act jaegerianus is a key factor that is being designate Army lands on NTC as critical states that critical habitat shall be considered in the development of the habitat for Astragalus jaegerianus. designated, and revised on the basis of WMP. We have been providing Although NTC has an INRMP in place, the best scientific data available after technical assistance to the Bureau to it does not address A. jaegerianus and taking into consideration the economic ensure that the WMP provides for it does not include the withdrawn lands impact, the impact on national security, protection and management of habitat where much of the critical habitat for A. and any other relevant impact of essential for the conservation of this jaegerianus is located. The Army is specifying any particular area as critical species. In addition, the Bureau’s amending its existing INRMP to address habitat. An area may be excluded from proposed amendments to the California the conservation of A. jaegerianus critical habitat if it is determined, Desert Conservation Area Plan will be throughout its lands, including the following an analysis, that the benefits subject to consultation under section 7 expansion area. However, we cannot of such exclusion outweigh the benefits of the Act. As part of the WMP, the exclude Army lands from this proposed of specifying a particular area as critical Bureau is proposing to establish the critical habitat designation under this habitat, unless the failure to designate Coolgardie Mesa and West Paradise amendment to the Act because the such area as critical habitat will result Conservation Areas, to implement amended INRMP has not been in the extinction of the species. management actions that will contribute completed and we have not had the Consequently, we may exclude an area toward the conservation of the species, opportunity to determine if the INRMP from designated critical habitat based on and to modify current activities within provides a benefit to A. jaegerianus. We economic impacts, or other relevant these areas so that such activities will will consider the INRMP if it is impacts such as preservation of not impair the conservation of the completed prior to our final designation

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of critical habitat, or at a later date, if where it is known to occur. All four errors during the 2001 surveys indicated the Service has sufficient funding to sites are essential because, as cited that the location of individuals did not undertake a proposed withdrawal of earlier, Astragalus jaegerianus exhibits match up precisely with the location of critical habitat. life history attributes, including variable the transect boundaries (Charis 2002); Military lands may also be excluded seed production, low germination rates, (4) limited surveys were conducted in from critical habitat designation based and habitat specificity in the form of a 2003, and despite the unfavorable on section 4(b)(2) of the Act. As dependence on a co-occurring organism climatic conditions for A. jaegerianus, discussed above, an area may be (host shrubs), that make it particularly 13 additional individuals were located excluded from critical habitat if it is vulnerable to extinction (Keith 1998, outside the MCPs (SAIC 2003). Three of determined, following an analysis of Gilpin and Soule 1986). We believe the the four areas where new plants were relevant impacts including the impact to proposed designation is of sufficient found were within the 0.25 mi (0.4 km) national security, that the benefits of size to maintain landscape scale boundary; and (5) this 0.25 mi (0.4 km) such exclusion outweigh the benefits of processes and to minimize the distance is commensurate in scale with specifying a particular area as critical secondary impacts resulting from the distance between transects where habitat, unless the failure to designate human occupancy and human activities individuals were found and the distance such area as critical habitat will result occurring in adjacent areas. We mapped between individuals along one transect, in the extinction of the species. the units with a degree of precision and it is well within the distance that Currently, the Army had proposed a commensurate with the available can be traversed by pollinators and seed combination of conservation measures information, the size of the unit, and the dispersers. and military training over A. jaegerianus time allotted to complete this proposal. We next removed areas on the sites. When we conduct the 4(b)(2) We anticipate that the boundaries of the margins of the critical habitat units analysis prior to finalizing this three mapping units may be refined where we determined, by referring to designation, we will fully consider the based on additional information digital raster graphic maps, the final plans for the expansion areas, the received during the public comment topography is either too steep or the economic analysis, and any comments period. elevation too high to support additional received from the Army on this Of principle importance in the Astragalus jaegerianus individuals. This proposal. process of delineating the proposed boundary modification involved editing critical habitat units are data in a the eastern and southeastern edge of the Methods geographic information system (GIS) Coolgardie Unit and a cirque-shaped As required by the Act and format provided by the Army depicting sliver from the central portion of the regulations (section 4(b)(2) and 50 CFR the results of field surveys for southern boundary of the Goldstone- 424.12) we used the best scientific Astragalus jaegerianus conducted in Brinkman Unit. information available to determine areas 2001 by the Army (Charis 2002). These For the Goldstone and Brinkman- that contain the physical and biological data consisted of three files depicting Montana populations, expansion of the features that are essential for the the locations of transects that were MCP boundaries by 0.25 mi (0.4 km) left survival and recovery of Astragalus surveyed for A. jaegerianus, the a narrow corridor (about 0.125 mi (0.2 jaegerianus. This information included locations of A. jaegerianus individuals km)) between the revised population data from our files that we used for found during the surveys, and minimum boundaries. We chose to bridge the gap listing the species; geologic maps convex polygons (MCP) calculated to between the two populations by (California Geologic Survey 1953), represent the outer bounds of A. incorporating the intervening habitat recent biological surveys and reports, jaegerianus populations (Charis 2002). that is within the geographic area particularly from the Army surveys of For mapping proposed critical habitat occupied by the species between the 2001 (Charis 2002); additional units, we proceeded through a multi- Goldstone and Brinkman-Montana information provided by the Army, the step process. First, we started with the populations and occupied as seed banks Bureau of Land Management, and other MCPs that had been calculated by the into a single critical habitat unit. We did interested parties; and discussions with Army (Charis 2002). We then expanded this for several reasons: the intervening botanical experts. We also conducted these boundaries outward from the edge habitat between the two MCPs contains multiple site visits to all three units that of each of the 4 populations by a the PCEs with the appropriate are being proposed for designation. distance of 0.25 mi (0.4 km). We did this elevational range, granitic soils, and The longterm probability of the to include Astragalus jaergerianus plant communities (based on survival and recovery of Astragalus individuals that are part of these topographic maps, geologic maps, and jaegerianus is dependent upon the essential populations, but were not aerial photos) that Astragalus protection of existing population sites, noted during surveys. The basis for jaegerianus requires, there were no and the maintenance of ecologic determining that these additional land obvious geographic barriers between the functions within these sites, including areas are occupied are as follows: (1) two MCPs; the distance between the two connectivity within and between This habitat has the appropriate closest A. jaegerianus individuals across populations within close geographic elevational range, and includes the the gap of the two MCPs was smaller proximity to facilitate pollinator activity Primary Constituent Elements (PCEs) than the distance between individuals and seed dispersal mechanisms, and the (See Primary Constituent Elements within the MCPs; and the distance ability to maintain these areas free of section below), i.e. granitic soils, and between the two MCPs was small major ground-disturbing activities. The plant communities that support host enough that it could be easily traversed areas we are proposing to designate as plants that A. jagerianus requires; (2) by a pollinator with a potential flight critical habitat provide some or all of Botanists involved in the Army surveys distance of 0.6 mi (1 km), or a seed the habitat components essential for the stated that ‘‘the estimate of [A. disperser such as certain small conservation of A. jaegerianus. jagerianus] distribution is a minimum’’ mammals and birds. These granitic soils In our delineation of the critical (SAIC 2003); and that additional and plant community also provide habitat units, we selected areas to individuals of A. jaegerianus most likely habitat for the pollinators that visit A. provide for the conservation of occurred on the fringes of the MCPs. jaegerianus flowers that results in the Astragalus jaegerianus at the four sites (Wertenberger in litt. 2003); (3) mapping production of seed, habitat for seed

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dispersers (birds, small mammals, and vegetation can grow also do not and will with the observed and potential large insects) that carry seed between not contain any of the primary distribution of this species include the the coppices of suitable host shrubs, and constituent elements. Federal actions following: A portion of seeds will likely as long-term storage for the soil limited to these areas, therefore, would germinate if germination requirements seedbank of A. jaegerianus. not trigger a section 7 consultation, of scarification and moisture are met For the Paradise population, we unless they affect the species and/or within a germination time frame for the removed a small portion of habitat (47 primary constituent elements in species; germination patterns likely ac (19 ha)) from the eastern edge of the adjacent critical habitat. reflect the distribution of the seed bank MCP (5,497 ac (2,225 ha)), thereby in the soils; and distribution patterns of Primary Constituent Elements eliminating a small cluster of three standing plants may, in large part, individuals and the surrounding In accordance with section 3(5)(A)(i) reflect the distribution pattern of suitable habitat from the proposed of the Act and regulations at 50 CFR requisite climatic conditions for a critical habitat unit. We did this for two 424.12, in determining which areas to particular year, while in other areas, reasons: the distance between this small propose as critical habitat, we consider standing plants may not be visible but cluster of three individuals and the those physical and biological features persist as dormant taproots for a number other 1,487 individuals mapped within (primary constituent elements) that are of years. Including habitat surrounding the MCP was greater than the distance essential to the conservation of the the known populations outward for a between other clusters of individuals species and that may require special distance of 0.25 mi (0.4 km) would within the MCP, and this cluster of management considerations or ensure inclusion of most of the individuals was not adjacent to, or protection. These include, but are not population. providing connectivity to, any other limited to space for individual and Based on our knowledge to date, the known population of A. jaegerianus. population growth, and for normal primary constituent elements of critical Finally, the boundaries of the critical behavior; food, water, air, light, habitat for Astragalus jaegerianus habitat units were modified slightly in minerals or other nutritional or consist of: the process of creating the legal physiological requirements; cover or (1) Shallow soils (between 3,100 and descriptions of the critical habitat units. shelter; sites for breeding, reproduction, 4,200 ft (945 to 1,280 m) in elevation) This process consisted of overlaying the or rearing of offspring, germination, or derived primarily from Jurassic or critical habitat units with grid lines seed dispersal; and habitats that are Cretaceous granitic bedrock, and less spaced at 100-m intervals; the grid lines protected from disturbance or are frequently on soils derived from diorite following the Universal Transverse representative of the historic or gabbroid bedrock and at one location Mercator (UTM) coordinate system ties geographical and ecological on granitic soils overlain by scattered to the North American Datum of 1927. distributions of a species. rhyolitic cobble, gravel, and sand. Vertices defining the critical habitat Much of what is known about the (2) The host shrubs (between 3,100 boundary polygon were then moved to specific physical and biological and 4,200 ft (945 to 1,280 m) in the closest vertex on the 100-m UTM requirements of Astragalus jaegerianus elevation) within which Astragalus grid lying inside of the critical habitat is described in the Background section jaegerianus grows, most notably boundary. Vertices not necessary to of this proposal and in the final listing Thamnosma montana, Ambrosia define the shape of the boundary rule. The proposed critical habitat is dumosa, Eriogonum fasciculatum ssp. polygon were deleted. Changing the designed to provide sufficient habitat to polifolium, Ericameria cooperi var. boundaries in this fashion serves two maintain self-sustaining populations of cooperi, Ephedra nevadensis, and purposes: (1) It creates a list of Astragalus jaegerianus throughout its Salazaria mexicana that are usually coordinates that is easier for the public range and to provide those habitat found in mixed desert shrub to use when looking at USGS 7.5 minute components essential for the communities. topographic maps and, (2) it minimizes conservation of the species. These We selected critical habitat areas to the number of coordinates necessary to habitat components provide for: (1) provide for the conservation of define the shapes of the critical habitat Individual and population growth, Astragalus jaegerianus at the only four units. including sites for germination, sites where they are known to occur. We In selecting areas of proposed critical pollination, reproduction, pollen and are not proposing any critical habitat habitat, we typically make an effort to seed dispersal, and seed bank; (2) sites units that do not contain plants. avoid developed areas, such as roads for the host plants that provide and buildings at NASA’s Goldstone structural support for A. jaegerianus; (3) Special Management Considerations facilities, and that are unlikely to intervening areas that allow gene flow Within the geographic area occupied contribute to the conservation of and provide connectivity or linkage by the species, for an area to be Astragalus jaegerianus. However, we within segments of the larger designated as critical habitat it must did not map critical habitat in sufficient population; and (4) areas that provide contain those physical or biological detail to exclude patches of habitat basic requirements for growth, such as features essential to the conservation of within the larger areas being mapped water, light, and minerals. the species that may require special that are unlikely to contain the primary The conservation of Astragalus management considerations or constituent elements essential for the jaegerianus is dependent upon a protection. The Goldstone-Brinkman conservation of A. jaegerianus. Land number of factors, including the unit may require special management within the boundaries of the mapped protection and management of existing considerations or protection due to the units upon which are located facilities, population sites and habitat and the threats to the species and its habitat such as buildings, roads, parking lots, maintenance of normal ecological posed by invasions of non-native plants communication tower pads, and other functions within these sites, including such as Sahara mustard (Brassica paved areas, does not and will not connectivity between groups of plants tournefortii) that may take over habitat contain any of the primary constituent within close geographic proximity to for the species; habitat fragmentation elements. In addition, old mining sites facilitate gene flow among the sites by that detrimentally affects plant-host where the soil profile and topography pollinator activity and dispersal of plant (composition and structure of the have been so altered that no native seeds. Some of the factors associated desert scrub community) and plant-

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pollinator interactions, leading to a scrub community) and plant-pollinator The land within this unit supports the decline in species reproduction and interactions, leading to a decline in PCEs for the species—granitic soils and increasing susceptibility to non-native species reproduction and increasing plant community that are necessary for plant invasion; and vehicles that cause susceptibility to non-native plant the growth, reproduction, and direct and indirect impacts, such as invasion; vehicles that cause direct and establishment of A. jaergerianus excessive dust, to the plant. Habitat for indirect impacts, such as excessive dust, individuals. This unit also includes an Astragalus jaegerianus in the Goldstone- to the plant; and limited mining essential narrow 0.125 mi (0.2 km) Brinkman unit has been fragmented to activities that can lead to changes in corridor between the two populations a minor extent. We anticipate that in the essential habitat conditions (e.g., that contains the appropriate granitic future, habitat fragmentation will decreases in plant cover, and increases soils and plant community to support A. increase, that changes in composition in non-native species). Habitat for jaegerianus, and supports pollinators and structure of the plant community Astragalus jaegerianus in the Coolgardie and seed dispersers between the two may be altered by the spread of non- unit has been fragmented to a moderate populations. This unit is the native plants, and that the direct and extent from current and historical northeasternmost of the three units. indirect effects of dust may increase. All mining and from off-road vehicle use, Unit 2: Paradise of these threats would render the habitat and non-native species have been less suitable for A. jaegerianus, and introduced into the area. We anticipate Unit 2 consists of approximately special management may be needed to that in the future, habitat fragmentation 6,828 ac (2,763 ha). Of this, 5,755 ac address them. At this time, special may increase, and that changes in (2,329 ha) is on Army lands on NTC, management considerations under composition and structure of the plant and approximately 466 ac (189 ha) on 3(5)(a) of the Act do warrant proposing community may be altered by the adjacent Federal lands managed by the this unit as critical habitat, but if continued spread of non-native plants. Bureau of Land Management (Bureau). circumstances change these areas may All of these threats would render the The Army is proposing to designate be designated in the final rule. habitat less suitable for A. jaegerianus, approximately 4,800 ac (1,943 ha) of The Paradise unit may require special and special management may be needed this site as the East Paradise Valley management considerations or to address them. At this time, special Conservation Area. The Bureau is also protection due to the threats to the management considerations under proposing to designate an area of species and its habitat posed by 3(5)(a) of the Act do warrant proposing approximately 1,000 ac (405 ha), which invasions of non-native plants such as this unit as critical habitat, but if includes some private inholdings, at Sahara mustard (Brassica tournefortii) circumstances change these areas may this site as part of the East Paradise that may take over habitat for the be designated in the final rule. Valley Conservation Area. This unit is species; habitat fragmentation that essential because it supports the detrimentally affects plant-host plant Proposed Critical Habitat Designation Paradise population, only one of four (composition and structure of the desert The proposed critical habitat areas populations of Astragalus jaegerianus; scrub community) and plant-pollinator described below constitute our best in 2001 surveys, 1,667 individuals were interactions, leading to a decline in assessment at this time of the areas observed in this population. The land species reproduction and increasing needed for the species’ conservation. within this unit supports the granitic susceptibility to non-native plant The three areas being proposed as soils and plant community that are invasion; vehicles that cause direct and critical habitat are all within an area necessary for the growth, reproduction, indirect impacts, such as excessive dust, that is north of the town of Barstow in and establishment of A. jaegerianus to the plant. Habitat for Astragalus the Mojave Desert in San Bernardino individuals. These granitic soils and jaegerianus in the Paradise unit has County, California, are currently plant community also provide habitat been fragmented to a minor extent. We occupied, and contain the primary for the pollinators that visit A. anticipate that in the future, habitat constituent elements that sustain the jaegerianus flowers that results in the fragmentation may increase, that Astragalus jaegerianus. production of seed, habitat for seed changes in composition and structure of The following general areas are dispersers (birds, small mammals, and the plant community may be altered by proposed as critical habitat (see legal large insects) that carry seed between the spread of non-native plants, and that descriptions for exact critical habitat the coppices of suitable host shrubs, and the direct and indirect effects of dust boundaries). as long-term storage for the soil seedbank of A. jaegerianus. may increase. All of these threats would Unit 1: Goldstone-Brinkman render the habitat less suitable for A. Unit 3: Coolgardie jaegerianus, and special management Unit 1 consists of approximately may be needed to address them. At this 9,906 ac (4,008 ha), with 9,502 ac (3,845 Unit 3 consists of approximately time, special management ha) of the lands managed by the Army 12,788 ac (5,175 ha), primarily on considerations under 3(5)(a) of the Act on NTC. Of the Army land, 996 ac (403 Federal lands managed by the Bureau. do warrant proposing this unit as ha) are leased to NASA (Goldstone Approximately the same amount of land critical habitat, but if circumstances Tracking Station). The Army is (9,161 ac (3,707 ha)) is within the change these areas may be designated in proposing to designate approximately Bureau’s proposed Coolgardie Mesa the final rule. 1,300 ac (526 ha) as the Goldstone Conservation Area (CMCA) and overlaps The Coolgardie unit may require Conservation Area. The rest of the unit to a great extent with the proposed special management considerations or consists of 211 ac (85 ha) of state land, Coolgardie critical habitat unit. Parcels protection due to the threats to the and 193 ac (78 ha) of private land. This of private land are scattered throughout species and its habitat posed by unit is essential because it supports two this unit and total approximately 3,627 invasions of non-native plants such as of the four populations of Astragalus ac (1,467 ha). Some portion of these Sahara mustard (Brassica tournefortii) jaegerianus—the Goldstone and parcels most likely will be acquired by that may take over habitat for the Brinkman Wash—Montana Mine the Bureau and added to the CMCA. species; habitat fragmentation that populations. In 2001 surveys, 555 and This unit is essential because it supports detrimentally affects plant-host plant 1,487 individuals were observed, one of only four populations of (composition and structure of the desert respectively, in these two populations. Astragalus jaegerianus. In 2001 surveys,

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2,014 plants were observed in this center of the unit, which does not carry seed between the coppices of population. The land within this unit contain the appropriate granitic soils. suitable host shrubs, and as long-term supports the granitic soils and plant These granitic soils and plant storage for the soil seedbank of A. community that are necessary for the community also provide habitat for the jaegerianus. growth, reproduction, and pollinators that visit A. jaegerianus The approximate areas of proposed establishment of A. jaegerianus flowers that results in the production of critical habitat by land ownership are individuals; proposed critical habitat seed, habitat for seed dispersers (birds, does not include the ‘‘donut hole’’ in the small mammals, and large insects) that shown in Table 1.

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

Department of De- Bureau of Land Unit name fense lands Management State lands commission Private lands Totals (Federal) (Federal)

1. Goldstone-Brinkman ... 9,502 ac (3,845 ha) 0 ac (0 ha) ...... 211 ac (85 ha) ...... 193 ac (78 ha) ...... 9,906 ac (4,008 ha) 2. Paradise ...... 5,755 ac (2,329 ha) 466 ac (189 ha) ...... 0 ac (0 ha) ...... 607 ac (246 ha) ...... 6,828 ac (2,763 ha) 3. Coolgardie ...... 0 ac (0 ha) ...... 9,074 ac (3,672 ha) 0 ac (0 ha) ...... 3,714 ac (1503 ha) 12,788 ac (5,175 ha) Totals ...... 15,257 ac (6,174 9,627 ac (3,896 ha) 211 ac (85 ha) ...... 4,427 ac (1,792 ha) 29,522 ac (11,947 ha). ha) 1 Approximate acres have been converted to hectares (1 ac = 0.4047 ha). Fractions of acres and hectares have been rounded to the nearest whole number. Totals are sums of units.

Effects of Critical Habitat Designation according to 50 CFR 402.14, as if the relocation of the project. Costs species was listed or critical habitat associated with implementing a Section 7(a) of the Act requires designated. We may adopt the formal reasonable and prudent alternative are Federal agencies, including the Service, conference report as the biological similarly variable. to ensure that actions they fund, opinion when the species is listed or Regulations at 50 CFR 402.16 require authorize, or carry out do not destroy or critical habitat designated, if no Federal agencies to reinitiate adversely modify critical habitat to the substantial new information or changes consultation on previously reviewed extent that the action appreciably in the action alter the content of the actions in instances where critical diminishes the value of the critical opinion (see 50 CFR 402.10(d)). habitat is subsequently designated, and habitat for the survival and recovery of If a species is listed or critical habitat the Federal agency has retained the species. Individuals, organizations, is designated, section 7(a)(2) requires discretionary involvement or control States, local governments, and other Federal agencies to ensure that activities over the action or such discretionary non-Federal entities are affected by the they authorize, fund, or carry out are not involvement or control is authorized by designation of critical habitat only if likely to jeopardize the continued law. Consequently, some Federal their actions occur on Federal lands, existence of such a species or to destroy agencies may request reinitiation of require a Federal permit, license, or or adversely modify its critical habitat. consultation or conference with us on other authorization, or involve Federal If a Federal action may affect a listed actions for which formal consultation funding. species or its critical habitat, the has been completed, if those actions Section 7(a) of the Act requires responsible Federal agency must enter may affect designated critical habitat or Federal agencies, including the Service, into consultation with us. Through this adversely modify or destroy proposed to evaluate their actions with respect to consultation, we would ensure that the critical habitat. any species that is proposed or listed as permitted actions do not destroy or Activities that, when carried out, endangered or threatened and with adversely modify critical habitat. funded, or authorized by a Federal respect to its critical habitat, if any is When we issue a biological opinion agency, may directly or indirectly affect designated or proposed. Regulations concluding that a project is likely to critical habitat include, but are not implementing this interagency result in the destruction or adverse limited to: cooperation provision of the Act are modification of critical habitat, we also (1) Activities that would disturb the codified at 50 CFR part 402. Section provide reasonable and prudent upper layers of soil, including 7(a)(4) requires Federal agencies to alternatives to the project, if any are disturbance of the soil crust, soil confer with us on any action that is identifiable. ‘‘Reasonable and prudent compaction, soil displacement, and soil likely to jeopardize the continued alternatives’’ are defined at 50 CFR destabilization. These activities include, existence of a proposed species or result 402.02 as alternative actions identified but are not limited to, livestock grazing, in destruction or adverse modification during consultation that can be fire management, and recreational use of proposed critical habitat. Conference implemented in a manner consistent that would include mechanical reports provide conservation with the intended purpose of the action, disturbance such as would occur with recommendations to assist the action that are consistent with the scope of the tracked vehicles, heavy-wheeled agency in eliminating conflicts that may Federal agency’s legal authority and vehicles, off-highway vehicles be caused by the proposed action. The jurisdiction, that are economically and (including motorcycles), and mining conservation recommendations in a technologically feasible, and that the activities, such as ‘‘club mining’’ with conference report are advisory. Director believes would avoid the drywashers and sluices. We may issue a formal conference destruction or adverse modification of (2) Activities that appreciably degrade report, if requested by the Federal action critical habitat. Reasonable and prudent or destroy the native desert scrub agency. Formal conference reports alternatives can vary from slight project communities, including but not limited include an opinion that is prepared modifications to extensive redesign or to livestock grazing, clearing, discing,

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fire management, and recreational use Section 4(b)(8) of the Act requires us or there may be a proposed activity that that would include mechanical to briefly describe and evaluate in any is not covered by the HCP, and therefore disturbance such as would occur with proposed or final regulation that may require a separate habitat tracked vehicles, heavy-wheeled designates critical habitat those conservation plan. vehicles, off-highway vehicles activities involving a Federal action that If you have questions regarding (including motorcycles), and mining may destroy or adversely modify such whether specific activities will likely activities such as ‘‘club mining’’ with habitat or that may be affected by such constitute destruction or adverse drywashers and sluices. designation. Activities that may destroy modification of critical habitat, contact (3) The application or runoff of or adversely modify critical habitat the Field Supervisor, Ventura Fish and chemical or biological agents into the would be those that alter the primary Wildlife Office (see ADDRESSES section). air, onto the soil, or onto native constituent elements to the extent that Requests for copies of the regulations on vegetation, including substances such as the value of critical habitat for the listed wildlife and inquiries about pesticides, herbicides, fertilizers, conservation of Astragalus jaegerianus prohibitions and permits may be tackifiers, obscurants, and chemical fire is appreciably reduced. We note that addressed to the U.S. Fish and Wildlife retardants. such activities may also jeopardize the Service, Portland Regional Office, 911 Activities that may destroy or continued existence of the species. NE 11th Avenue, Portland, OR 97232 adversely modify critical habitat include Designation of critical habitat could (telephone 503/231–6131; facsimile those that alter the primary constituent affect the following agencies and/or 503/231–6243). elements to an extent that the value of actions: critical habitat for both the survival and (1) Military-related and construction Application of Section 3(5)(A) and recovery of Astragalus jaegerianus is activities of the Army on its lands or 4(a)(3) and Exclusions Under Section appreciably reduced. We note that such lands under its jurisdiction, including 4(b)(2) of the Act activities may also jeopardize the those lands leased to NASA; We have not excluded any lands from continued existence of the species. (2) Activities of the Bureau of Land this proposed designation pursuant to We recognize that the proposed Management on its lands or lands under sections 3(5)(A), 4(a)(3), and 4(b)(2) of designation of critical habitat may not its jurisdiction; the Act. Although the Bureau has include all of the habitat areas that may (3) The release or authorization of published the draft EIR/S for the West eventually be determined to be release of biological control agents by Mojave Plan and we anticipate the final necessary for the recovery of the Federal agencies, including the Bureau plan may be published in fall 2004, the species. For this reason, we want to of Land Management, the Army, and the attendant draft HCP has yet to be ensure that the public is aware that U.S. Department of Agriculture; and prepared. The proposed designation critical habitat designations do not (4) Habitat restoration projects on includes a portion of Fort Irwin, an signal that habitat outside the proposed private lands receiving funding from Army installation. The Army has designation is unimportant or may not Federal agencies, such as from the proposed to establish two conservation be required for recovery. Areas outside Natural Resources Conservation Service. areas and an additional area that would the proposed critical habitat designation As discussed previously in this rule, be subject to light use (i.e., foot traffic will continue to be subject to we are consulting with both the Army only); however, the integrated natural conservation actions that may be and the Bureau on activities that are resource management plan for this implemented under section 7(a)(1) of being proposed on their lands. We are portion of the installation has not been the Act and to the regulatory protections consulting with the Army on its finalized. We expect to work with the afforded by the section 7(a)(2) jeopardy proposed addition of training lands on Army on the development of the standard and the prohibitions of section NTC (Charis 2003). We are also integrated natural resource management 9 of the Act. Critical habitat consulting with the Bureau as the lead plan for Fort Irwin in the coming designations made on the basis of the Federal agency for the proposed West months. We may consider excluding best available information at the time of Mojave Plan (Bureau 2003). these lands from critical habitat in the designation will not control the Where federally listed wildlife species final designation pursuant to these direction and substance of future occur on private lands proposed for sections of the Act. recovery plans, habitat conservation development, any habitat conservation plans, or other species conservation plans submitted by the applicant to Economic Analysis planning efforts if new information secure an incidental take permit, An analysis of the economic impacts available to these planning efforts calls pursuant to section 10(a)(1)(B) of the of proposing critical habitat for the for a different outcome. Act, would be subject to the section 7 Astragalus jaegerianus is being Activities on Federal lands that may consultation process. The Superior- prepared. We will announce the affect Astragalus jaegerianus or its Cronese Critical Habitat Unit for the availability of the draft economic critical habitat will require section 7 desert tortoise (Gopherus agassizii), a analysis as soon as it is completed, at consultation. Activities on private or species that is listed as threatened under which time we will seek public review State lands requiring a permit from a the Act, overlaps in range with and comment. At that time, copies of Federal agency, such as a permit from Astragalus jaegerianus in a portion of the draft economic analysis will be the U.S. Army Corps of Engineers under the Brinkman-Montana, Paradise, and available for downloading from the section 404 of the Clean Water Act or Coolgardie populations of the species. Internet at http://ventura.fws.gov, or by any other activity requiring Federal Although we anticipate that most of the contacting the Ventura Fish and action (i.e., funding, authorization), will activities occurring on private lands Wildlife Office directly (see ADDRESSES also continue to be subject to the section within the range of A. jaegerianus will section). 7 consultation process. Federal actions eventually be included under the not affecting listed species or critical umbrella of the HCP to be prepared by Peer Review habitat, and actions on non-Federal and the County of San Bernardino, there In accordance with our joint policy private lands that are not federally may be activities proposed for private published in the Federal Register on funded, authorized, or permitted, do not lands that either need to be completed July 1, 1994 (59 FR 34270), we will require section 7 consultation. prior to the approval of the WMP’s HCP, solicit the expert opinions of at least

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three appropriate and independent Required Determinations this rule as well as the types of project specialists regarding this proposed rule. modifications that may result. Regulatory Planning and Review The purpose of such review is to ensure The Regulatory Flexibility Act does that our critical habitat designation is In accordance with Executive Order not explicitly define either ‘‘substantial based on scientifically sound data, (EO) 12866, this action was submitted to number’’ or ‘‘significant economic assumptions, and analyses. We will the Office of Management and Budget impact.’’ Consequently, to assess send these peer reviewers copies of this (OMB); however they declined to review whether a ‘‘substantial number’’ of small proposed rule immediately following the proposed rule. We will submit the entities is affected by this designation, publication in the Federal Register. We final rule to OMB for their review. OMB this analysis considers the relative will invite these peer reviewers to makes the final determination under number of small entities likely to be comment, during the public comment Executive Order 12866. impacted in the area. Similarly, this period, on the specific assumptions and Regulatory Flexibility Act (5 U.S.C. 601 analysis considers the relative cost of conclusions regarding the proposed et seq.) compliance on the revenues/profit designation of critical habitat. margins of small entities in determining Under the Regulatory Flexibility Act whether or not entities incur a We will consider all comments and (5 U.S.C. 601 et seq., as amended by the ‘‘significant economic impact.’’ Only information received within the 60-day Small Business Regulatory Enforcement small entities that are expected to be comment period on this proposed rule Fairness Act (SBREFA) of 1996), directly affected by the designation are as we prepare our final rulemaking. whenever an agency is required to considered in this portion of the Accordingly, the final determination publish a notice of rulemaking for any analysis. This approach is consistent may differ from this proposal. proposed or final rule, it must prepare with several judicial opinions related to Public Hearings and make available for public comment the scope of the Regulatory Flexibility a regulatory flexibility analysis that Act. (Mid-Tex Electric Co-Op, Inc. v. The Endangered Species Act provides describes the effects of the rule on small F.E.R.C. and American Trucking for one or more public hearings on this entities (i.e., small businesses, small Associations, Inc. v. EPA). proposal, if requested. Requests must be organizations, and small government Designation of critical habitat only received within 45 days of the date of jurisdictions). However, no regulatory affects activities conducted, funded, or publication of the proposal in the flexibility analysis is required if the permitted by Federal agencies; non- Federal Register. Such requests must be head of the agency certifies the rule will Federal activities are not affected by the made in writing and be addressed to the not have a significant economic impact designation if they lack a Federal nexus. Field Supervisor (see ADDRESSES on a substantial number of small In areas where the species is present, section). We will schedule public entities. SBREFA amended the Federal agencies funding, permitting, or hearings on this proposal, if any are Regulatory Flexibility Act to require implementing activities are already requested, and announce the dates, Federal agencies to provide a statement required to avoid jeopardizing the times, and places of those hearings in of the factual basis for certifying that a continued existence of the Astragalus the Federal Register and local rule will not have a significant jaegerianus through consultation with newspapers at least 15 days prior to the economic impact on a substantial us under section 7 of the Act. If this first hearing. number of small entities. SBREFA also critical habitat designation is finalized, amended the Regulatory Flexibility Act Federal agencies must also consult with Clarity of the Rule to require a certification statement. us to ensure that their activities do not Based on the information that is destroy or adversely modify designated Executive Order 12866 requires each available to us at this time, we are agency to write regulations and notices critical habitat. certifying that this proposed designation Should a federally funded, permitted, that are easy to understand. We invite of critical habitat will not have a or implemented project be proposed your comments on how to make this significant economic impact on a that may affect designated critical proposed rule easier to understand, substantial number of small entities. habitat, we will work with the Federal including answers to questions such as The following discussion explains our action agency and any applicant, the following—(1) Are the requirements rationale. through section 7 consultation, to in the proposed rule clearly stated? (2) According to the Small Business identify ways to implement the Does the proposed rule contain Administration (SBA), small entities proposed project while minimizing or technical jargon that interferes with the include small organizations, including avoiding any adverse effect to the clarity? (3) Does the format of the any independent nonprofit organization species or critical habitat. In our proposed rule (grouping and order of that is not dominant in its field, and experience, the vast majority of such the sections, use of headings, small governmental jurisdictions, projects can be successfully paragraphing, etc.) aid or reduce its including school boards and city and implemented with at most minor clarity? (4) Is the description of the town governments that serve fewer than changes that avoid significant economic notice in the SUPPLEMENTARY 50,000 residents, as well as small impacts to project proponents. INFORMATION section of the preamble businesses. The SBA defines small In the case of Astragalus jaegerianus, helpful in understanding the notice? (5) businesses categorically and has our review of the consultation history What else could we do to make this provided standards for determining for this plant and other information proposed rule easier to understand? what constitutes a small business at 13 currently available to us indicates that Send a copy of any comments that CFR parts 121–201 (also found at the proposed designation of critical concern how we could make this http://www.sba.gov/size/), which the habitat is not likely to have a significant proposed rule easier to understand to— Regulatory Flexibility Act requires all impact on any small entities or classes Office of Regulatory Affairs, Department Federal agencies to follow. To of small entities. We could identify no of the Interior, Room 7229, 1849 C determine if potential economic impacts small entities that would be affected by Street, NW., Washington, DC 20240. to these small entities are significant, we this designation. Therefore, we are You may e-mail your comments to: consider the types of activities that certifying that the proposed designation [email protected]. might trigger regulatory impacts under of critical habitat for Astragalus

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jaegerianus will not have a significant Land Management 1980). Therefore, this Protected Private Property Rights’’), we economic impact on a substantial action is not a significant energy action have analyzed the potential takings number of small entities, and an initial and no Statement of Energy Effects is implications of designating critical regulatory flexibility analysis is not required. habitat for Astragalus jaegerianus. This required. This determination will be preliminary assessment concludes that Unfunded Mandates Reform Act (2 revisited after the close of the comment this proposed rule does not pose U.S.C. 1501 et seq.) period and revised, if necessary, in the significant takings implications. final rule. In accordance with the Unfunded However, we have not yet completed As required under section 4(b)(2) of Mandates Reform Act (2 U.S.C. 1501), the economic analysis for this proposed the Act, we will conduct an analysis of the Service makes the following rule. Once the economic analysis is the potential economic impacts of this findings. available, we will review and revise this proposed critical habitat designation (a) Under the Unfunded Mandates preliminary assessment as warranted. and will make that analysis available for Reform Act, if a rule will produce a public review and comment before Federal mandate of $100 million or Federalism finalizing this designation. However, greater in any one year, a statement In accordance with Executive Order court deadlines require us to publish must be prepared and a summary of that 13132, the rule does not have significant this proposed rule before the economic statement included in the rulemaking. Federalism effects. A Federalism analysis can be completed. In general, a Federal mandate is a assessment is not required. As discussed This discussion is based upon the provision in legislation, statute or above, the designation of critical habitat information regarding potential regulation that would impose an in areas currently occupied by economic impact that is available to us enforceable duty upon State, local, tribal Astragalus jaegerianus would have little at this time. This assessment of governments, or the private sector and incremental impact on State and local economic effects may be modified prior includes both ‘‘Federal governments and their activities. This is to final rulemaking based upon intergovernmental mandates’’ and because the proposed critical habitat development and review of the draft ‘‘Federal private sector mandates.’’ occurs to a great extent on Federal lands economic analysis prepared pursuant to These terms are defined in 2 U.S.C. managed by the Department of Defense section 4(b)(2) of the ESA and Executive 658(5)–(7). If the economic analysis and the Bureau of Land Management, Order 12866. This analysis is for the being prepared to analyze the economic and less than 2 percent occurs on purpose of compliance with the impacts of this designation indicates private lands that would involve State Regulatory Flexibility Act and does not that the rule will produce a Federal and local agencies. reflect our position on the type of mandate of $100 million or more in any The proposed designation of critical economic analysis required by New year, a statement will be prepared and habitat may have some benefit to State Mexico Cattle Growers Assn. v. U.S. this proposed rule will be supplemented and local governments in that the areas Fish & Wildlife Service 248 F.3d 1277 with a summary of that statement essential to the conservation of these (10th Cir. 2001). published in the notice announcing species are more clearly defined, and availability of the proposed economic the primary constituent elements of the Small Business Regulatory Enforcement analysis. habitat necessary to the survival of the Fairness Act (5 U.S.C. 804(2)) (b) This proposed rule will not species are identified. While this In the draft economic analysis, we ‘‘significantly or uniquely’’ affect small definition and identification does not will determine whether designation of governments. A Small Government alter where and what federally critical habitat will cause (a) any effect Agency Plan is not required. State lands sponsored activities may occur, it may on the economy of $100 million or constitute a very small amount, only assist these local governments in long- more, (b) any increases in costs or prices 0.7%, of the total proposed designation. range planning rather than waiting for for consumers, individual industries, Given the distribution of this species, case-by-case section 7 consultation to Federal, State, or local government small governments will not be uniquely occur. agencies, or geographic regions in the affected by this proposed rule. Small economic analysis, or (c) any significant governments will not be affected at all Civil Justice Reform adverse effects on competition, unless they propose an action requiring In accordance with Executive Order employment, investment, productivity, Federal funds, permits, or other 12988, the Department of the Interior’s innovation, or the ability of U.S.-based authorization. Any such activity will Office of the Solicitor has determined enterprises to compete with foreign- require that the involved Federal agency that this rule does not unduly burden based enterprises. ensure that the action is not likely to the judicial system and does meet the adversely modify or destroy designated requirements of sections 3(a) and 3(b)(2) Executive Order 13211 critical habitat. However, as discussed of the Order. We are proposing to On May 18, 2001, the President issued above, Federal agencies are currently designate critical habitat in accordance an Executive Order (E.O. 13211) on required to ensure that any such activity with the provisions of the Endangered regulations that significantly affect is not likely to jeopardize the species, Species Act. The rule uses standard energy supply, distribution, and use. and no further regulatory impacts from property descriptions and identifies the Executive Order 13211 requires agencies this proposed designation of critical primary constituent elements within the to prepare Statements of Energy Effects habitat are anticipated. We will examine designated areas to assist the public in when undertaking certain actions. This any potential impacts to small understanding the habitat needs of proposed rule to designate critical governments in our economic analysis, Astragalus jaegerianus. habitat for the Astragalus jaegerianus, as and revise our determination if Paperwork Reduction Act of 1995 (44 described above, is not expected to necessary. significantly affect energy supplies, U.S.C. 3501 et seq.) distribution, or use. There are no Takings This proposed rule does not contain transmission power lines identified on In accordance with Executive Order new or revised information collection the proposed designated habitat, or 12630 (‘‘Government Actions and for which OMB approval is required energy extraction activities (Bureau of Interference With Constitutionally under the Paperwork Reduction Act.

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Information collections associated with significantly affecting the quality of the Wildlife Service, 2493 Portola Road, certain Act permits are covered by an human environment. Suite B, Ventura, California 93003 (805/ existing OMB approval and are assigned 644–1766). Government-to-Government clearance No. 1018–0094, Forms 3–200– Relationship With Tribes List of Subjects in 50 CFR Part 17 55 and 3–200–56, with an expiration date of July 31, 2004. Detailed In accordance with the President’s Endangered and threatened species, information for Act documentation memorandum of April 29, 1994, Exports, Imports, Reporting and appears at 50 CFR part 17. This rule will ‘‘Government-to-Government Relations recordkeeping requirements, not impose recordkeeping or reporting With Native American Tribal Transportation. requirements on State or local Governments’’ (59 FR 22951) and the Proposed Regulation Promulgation governments, individuals, businesses, or Department of the Interior’s manual at organizations. An agency may not 512 DM 2, we readily acknowledge our Accordingly, the Service hereby conduct or sponsor, and a person is not responsibility to communicate proposes to amend part 17, subchapter required to respond to, a collection of meaningfully with recognized Federal B of chapter I, title 50 of the Code of information unless it displays a Tribes on a Government-to-Government Federal Regulations, as set forth below: currently valid OMB control number. basis. We have determined that there are no Tribal lands essential for the PART 17—[AMENDED] National Environmental Policy Act conservation of Astragalus jaegerianus. Therefore, designation of critical habitat 1. The authority citation for part 17 We have determined that an for A. jaegerianus has not been continues to read as follows: Environmental Assessment and/or an proposed on Tribal lands. Environmental Impact Statement as Authority: 16 U.S.C. 1361–1407; 16 U.S.C. defined by the National Environmental References Cited 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– 625, 100 Stat. 3500; unless otherwise noted. Policy Act of 1969 need not be prepared A complete list of all references cited in connection with regulations adopted herein, as well as others, is available 2. In § 17.12(h), revise the entry for pursuant to section 4(a) of the upon request from the Ventura Fish and ‘‘Astragalus jaegerianus’’ under Endangered Species Act, as amended. A Wildlife Office (see ADDRESSES section). ‘‘FLOWERING PLANTS,’’ to read as notice outlining our reason for this follows: determination was published in the Author Federal Register on October 25, 1983 The primary author of this proposed § 17.12 Endangered and threatened plants. (48 FR 49244). This proposed rule does rule is Constance Rutherford, Ventura * * * * * not constitute a major Federal action Fish and Wildlife Office, U.S. Fish and (h) * * *

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

FLOWERING PLANTS

******* Astragalus Lane Mountain milk- U.S.A. (CA) ...... Fabaceae—-Pea .... E 647 17.96(a) NA jaegerianus. vetch.

*******

3. In § 17.96(a), add critical habitat for derived from diorite or gabbroid 516900; 3898300: 517300; 3898500: Astragalus jaegerianus, in alphabetical bedrock and at one location granitic 517500; 3898600: 517600; 3898700: order under Family Fabaceae to read as soils overlain by scattered rhyolitic 517500; 3899100: 517500; 3900100: follows: cobble, gravel, and sand. 517600; 3900200: 518400; 3900600: (ii) The highly diverse mixed desert 519000; 3900600: 519600; 3900500: § 17.96 Critical habitat—plants. scrub community that includes the host 520000; 3900300: 520200; 3900100: (a) Flowering plants. shrubs within which Astragalus 521400; 3898700: 521500; 3898500: * * * * * jaegerianus grows, most notably: 521500; 3898300: 521400; 3897900: Thamnosma montana, Ambrosia 521300; 3897800: 521100; 3897700: Family Fabaceae: Astragalus dumosa, Eriogonum fasciculatum ssp. 519400; 3897700: 518600; 3897800: jaegerianus (Lane Mountain milk- polifolium, Ericameria cooperi var. 518400; 3897600: 518100; 3897400: vetch) cooperi, Ephedra nevadensis, and 517900; 3897300: 517800; 3897100: (1) Critical habitat units are depicted Salazaria mexicana. 517300; 3896600: 517400; 3896500: for San Bernardino County, California, (3) Critical Habitat Map Units. 517700; 3895900: 517700; 3895300: on the maps below. (i) Map Unit 1: Goldstone-Brinkman. 517600; 3894700: 517500; 3894500: (2) Critical habitat consists of the San Bernardino County, California. 517400; 3894400: 517000; 3894100: mixed desert scrub community within From USGS 1:24,000 quadrangle maps 516900; 3894000: 517300; 3893800: the range of Astragalus jaegerianus that Paradise Range and Williams Well. 517800; 3893500: 518100; 3893300: is characterized by the following Lands bounded by UTM zone 11 NAD27 518200; 3893200: 518200; 3892900: primary constituent elements: coordinates (E,N): 511200; 3897700: 518000; 3892600: 517500; 3892100: (i) Shallow soils derived primarily 511400; 3898100; 511600; 3898400: 517300; 3892100: 517100; 3892200: from Jurassic or Cretaceous granitic 511800; 3898600: 515900; 3898600: 516800; 3892400: 515800; 3893100: bedrock, and less frequently soils 516400; 3898500: 516800; 3898400: 515600; 3893300: 515500; 3893200:

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514000; 3892200: 513600; 3892200: 510200; 3890800: 509700; 3890500: 503900; 3879400: 503500; 3879300: 512900; 3892600: 512500; 3893000: 507800; 3889400: 507600; 3889300: 503000; 3879200: 502400; 3879100: 512400; 3893200: 512500; 3893800: 507500; 3889300: 507100; 3889400: 502100; 3879100: 502000; 3878900: 512600; 3894400: 512700; 3894900: 506700; 3889800: 506400; 3890300: 502000; 3878800: 501900; 3878600: 512800; 3895000: 514400; 3896100: 506200; 3891000: 506000; 3891800: 501100; 3878500: 500400; 3878400: 514600; 3896200: 514700; 3896200: 505900; 3892200: 505600; 3892400: 499700; 3878300: 499600; 3878300: 515000; 3896100: 515100; 3896600: 504900; 3892900: 504500; 3893300: 499300; 3878400: 498600; 3878600: 512800; 3896500: 511900; 3896600: 504300; 3893600: 503900; 3894300: 498400; 3878800: 498100; 3879900: 511700; 3896700: 511400; 3897100: 503900; 3894800: returning to 504000; 498000; 3880300: 497800; 3881000: 511200; 3897400: returning to 511200; 3895000. 496300; 3881600: 496100; 3881800: 3897700. (iii) Map Unit 3: Coolgardie. 496000; 3882200: 495800; 3883000: (ii) Map Unit 2: Paradise. San Bernardino County, California. 495700; 3883500: 495600; 3883900: San Bernardino County, California. From USGS 1:24,000 quadrangle maps 495600; 3884000: returning to 495800; From USGS 1:24,000 quadrangle map Lane Mountain and Mud Hills. Lands 3884400. Williams Well. Lands bounded by UTM bounded by UTM zone 11 NAD27 Excluding: 498800; 3883700: 498900; zone 11 NAD27 coordinates (E,N): coordinates (E,N): 495800; 3884400: 3883600: 499000; 3883400: 499400; 504000; 3895000: 504400; 3895200: 496400; 3884800: 497200; 3885200: 3882600: 499500; 3882100: 499500; 505100; 3895500: 505800; 3895500: 497400; 3885300: 497900; 3885500: 3882000: 499600; 3881800: 500000; 506200; 3895400: 506600; 3895300: 498300; 3885600: 499100; 3885700: 3881600: 500900; 3881100: 501400; 506800; 3895100: 507500; 3893900: 500500; 3885900: 501200; 3886000: 3880800: 501500; 3880800: 502100; 507600; 3894000: 508400; 3894700: 502000; 3886100: 502700; 3886200: 3881000: 502000; 3881100: 501800; 508800; 3895000: 509300; 3895400: 503400; 3886300: 503900; 3886200: 3882400: 501800; 3882800: 501700; 509500; 3895500: 509900; 3895500: 504400; 3886000: 504800; 3885800: 3882900: 501300; 3883400: 501000; 510000; 3895400: 510200; 3895100: 505000; 3885700: 505100; 3885600: 3883800: 500500; 3883800: 499100; 510600; 3894400: 510700; 3894200: 505300; 3885400: 505400; 3885200: 3883900: returning to 498800; 3883700. 510800; 3893900: 510900; 3893500: 505100; 3884300: 505100; 3880800: (iv) Note: Maps for Units 1, 2, and 3 510900; 3893000: 510800; 3892500: 504900; 3880300: 504800; 3880100: follow: 510500; 3891200: 510400; 3891000: 504600; 3879700: 504400; 3879600: BILLING CODE 4310–55–P

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Dated: March 30, 2004. our Montana Ecological Services Field consider anonymous comments. We Paul Hoffman, Office at the above address. will make all submissions from Acting Assistant Secretary for Fish and FOR FURTHER INFORMATION CONTACT: Ed organizations or businesses available for Wildlife and Parks. Bangs, Gray Wolf Recovery Coordinator, public inspection in their entirety (see [FR Doc. 04–7695 Filed 4–5–04; 8:45 am] at the above address or telephone (406) ADDRESSES section). BILLING CODE 4310–55–C 449–5225. Public Hearings SUPPLEMENTARY INFORMATION: In our March 9, 2004, proposed rule, DEPARTMENT OF THE INTERIOR Background we stated our intention to hold public On April 1, 2003, we published in the hearings. Therefore, we will hold the Fish and Wildlife Service Federal Register (68 FR 15879) an following hearings: advance notice of proposed rulemaking 50 CFR Part 17 that announced our intention to propose Public Hearings RIN 1018–AT61 rulemaking on nonessential 1. Helena, Montana—April 19, 2004, experimental populations for the at the Colonial Hotel, 2301 Colonial Endangered and Threatened Wildlife western distinct population segment of Drive from 6 p.m. to 9 p.m. and Plants; Special Regulations for the the gray wolf. On March 9, 2004, we 2. Boise, Idaho—April 20, 2004, at Western Distinct Population Segment published a proposed rule in the The Grove Hotel, Evergreen Room, 245 of the Gray Wolf Federal Register (69 FR 10956) for these South Capitol Blvd., from 1 p.m. to 3 nonessential experimental populations AGENCY: p.m. and from 6 p.m. to 8 p.m. Fish and Wildlife Service, and solicited public comments. Please Interior. refer to the proposed rule for Anyone wishing to make an oral ACTION: Proposed rule; notice of public background information, a summary of comment or statement for the record at hearing. previous Federal actions, and provisions the public hearing listed above is of the special regulations. We are now encouraged (but not required) to also We, the U.S. Fish and Wildlife provide a written copy of the statement Service (Service), are conducting public announcing public hearings to be held on this proposed rule. and present it to us at the hearing. Oral hearings on a proposed special rule for and written statements receive equal nonessential experimental populations Public Comments Solicited consideration. In the event there is a of the western distinct population We intend that any final action large attendance, the time allotted for segment of the gray wolf (Canis lupis) in resulting from this proposal be as oral statements may be limited. Idaho and Montana. Comments accurate and as effective as possible. Author previously submitted need not be Therefore, we solicit comments from the resubmitted as they will be incorporated public, other concerned governmental The primary author of this notice is into the public record as part of this agencies, the scientific community, Sharon Rose, External Affairs Officer, comment period, and will be fully industry, or any other interested party Denver Regional Office, telephone 303– considered in the final rule. concerning the proposed rule. Our 236–4580. DATES: Comments must be received by practice is to make comments, including May 10, 2004, to receive consideration. names and home addresses of Authority ‘‘ (See Public Hearings’’ section for time respondents, available for public review Authority for this action is the and location of the public hearing). during regular business hours. In some Endangered Species Act of 1973, as ADDRESSES: Comments on the proposed circumstances, we will withhold a amended (16 U.S.C. 1531 et seq.). rule may be sent to Western Gray Wolf respondent’s identity from the Recovery Coordinator, U.S. Fish and rulemaking record, as allowable by law. Dated: March 30, 2004. Wildlife Service, 100 N. Park, #320, If you wish us to withhold your name Mary G. Henry, Helena, Montana 59601, or by email to or address, you must state this request Regional Director, Denver, Colorado. [email protected]. You also prominently at the beginning of your [FR Doc. 04–7707 Filed 4–2–04; 11:22 am] may hand-deliver written comments to comments. However, we will not BILLING CODE 4310–55–P

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