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Proposed Designation of Critical Habitat for the San 60134 Federal Register / Vol. 69, No. 194 / Thursday, October 7, 2004 / Proposed Rules Dated: October 1, 2004. not functional, please submit comments requirements of section 7.’’ Currently, Julie MacDonald, by the alternate methods mentioned only 445 species or 36 percent of the Acting Assistant Secretary for Fish and above. 1,244 listed species in the U.S. under Wildlife and Parks. 4. You may fax your comments to the jurisdiction of the Service have [FR Doc. 04–22541 Filed 10–6–04; 8:45 am] 805/644–3958. designated critical habitat. We address BILLING CODE 4310–55–C The complete file for this finding is the habitat needs of all 1,244 listed available for public inspection, by species through conservation appointment, during normal business mechanisms such as listing, section 7 DEPARTMENT OF THE INTERIOR hours at the Ventura Fish and Wildlife consultations, the Section 4 recovery Office, U.S. Fish and Wildlife Service, planning process, the Section 9 Fish and Wildlife Service 2493 Portola Road, Suite B, Ventura, CA protective prohibitions of unauthorized 93003. take, Section 6 funding to the States, 50 CFR Part 17 FOR FURTHER INFORMATION CONTACT: For and the Section 10 incidental take RIN 1018–AT78 the San Miguel Island fox, Santa Rosa permit process. The Service believes Island fox, and Santa Cruz Island fox, that it is these measures that may make Endangered and Threatened Wildlife contact Diane Noda, Field Supervisor, the difference between extinction and and Plants; Proposed Designation of Ventura Fish and Wildlife Office at the survival for many species. Critical Habitat for the San Miguel address given above (telephone 805/ We note, however, that a recent 9th Island Fox, Santa Rosa Island Fox, 644–1766; facsimile 805/644–3958). For Circuit judicial opinion, Gifford Pinchot Santa Cruz Island Fox, and Santa the Santa Catalina Island fox, contact Task Force v. United States Fish and Catalina Island Fox Jim Bartel, Field Supervisor, Carlsbad Wildlife Service, has invalidated the Fish and Wildlife Office, 6010 Hidden Service’s regulation defining destruction AGENCY: Fish and Wildlife Service, Valley Road, Carlsbad, CA (telephone or adverse modification of critical Interior. 760/431–9440; facsimile 760/431–9624). habitat. We are currently reviewing the ACTION: Proposed rule. SUPPLEMENTARY INFORMATION: decision to determine what effect it may have on the outcome of consultations SUMMARY: The San Miguel Island fox, Preamble pursuant to Section 7 of the Act. Santa Rosa Island fox, Santa Cruz Island fox, and Santa Catalina Island fox were Designation of Critical Habitat Provides Procedural and Resource Difficulties in listed as endangered species under the Little Additional Protection to Species Designating Critical Habitat Endangered Species Act of 1973, as In 30 years of implementing the Act, We have been inundated with amended (Act), on March 5, 2004. We the Service has found that the lawsuits for our failure to designate do not find any habitat on the four designation of statutory critical habitat critical habitat, and we face a growing islands occupied by the foxes that meets provides little additional protection to number of lawsuits challenging critical the definition of critical habitat under most listed species, while consuming habitat determinations once they are the Act. Because there is no habitat that significant amounts of available made. These lawsuits have subjected the meets the definition of critical habitat conservation resources. The Service’s Service to an ever-increasing series of for the island fox subspecies, there is present system for designating critical court orders and court-approved none to propose, and we are proposing habitat has evolved since its original settlement agreements, compliance with that zero critical habitat be designated. statutory prescription into a process that which now consumes nearly the entire We solicit data and comments from provides little real conservation benefit, listing program budget. This leaves the the public on all aspects of this is driven by litigation and the courts Service with little ability to prioritize its proposed finding. Unless we receive rather than biology, limits our ability to activities to direct scarce listing information during the comment period fully evaluate the science involved, resources to the listing program actions that indicates there is habitat which consumes enormous agency resources, with the most biologically urgent meets the definition of critical habitat, and imposes huge social and economic species conservation needs. we will not be preparing an economic costs). The Service believes that The consequence of the critical analysis. additional agency discretion would habitat litigation activity is that limited DATES: We will consider comments allow our focus to return to those listing funds are used to defend active received by December 6, 2004. actions that provide the greatest benefit lawsuits, to respond to Notices of Intent ADDRESSES: If you wish to comment, to the species most in need of (NOIs) to sue relative to critical habitat, you may submit your comments and protection. and to comply with the growing number materials concerning this proposal by of adverse court orders. As a result, Role of Critical Habitat in Actual listing petition responses, the Service’s any one of several methods: Practice of Administering and 1. You may submit written comments own proposals to list critically Implementing the Act and information to the Field Supervisor, imperiled species, and final listing U.S. Fish and Wildlife Service, Ventura While attention to and protection of determinations on existing proposals are Fish and Wildlife Office, 2493 Portola habitat is paramount to successful all significantly delayed. Road, Suite B, Ventura, CA 93003. conservation actions, we have The accelerated schedules of court 2. You may hand-deliver written consistently found that, in most ordered designations have left the comments to our Ventura Office, at the circumstances, the designation of Service with almost no ability to address given above. critical habitat is of little additional provide for adequate public 3. You may send comments by value for most listed species, yet it participation or to ensure a defect-free electronic mail (e-mail) to: consumes large amounts of conservation rulemaking process before making [email protected]. Please see the resources. Sidle (1987) stated, ‘‘Because decisions on listing and critical habitat Public Comments Solicited section the Act can protect species with and proposals due to the risks associated below for file format and other without critical habitat designation, with noncompliance with judicially- information about electronic filing. In critical habitat designation may be imposed deadlines. This in turn fosters the event that our Internet connection is redundant to the other consultation a second round of litigation in which VerDate jul<14>2003 15:34 Oct 06, 2004 Jkt 205002 PO 00000 Frm 00038 Fmt 4702 Sfmt 4702 E:\FR\FM\07OCP1.SGM 07OCP1 Federal Register / Vol. 69, No. 194 / Thursday, October 7, 2004 / Proposed Rules 60135 those who fear adverse impacts from finalize the listing and for failure to time it [was] listed that are essential for critical habitat designations challenge publish a final determination regarding the conservation of the species.’’ those designations. The cycle of critical habitat (Center for Biological In accordance with section 3(5)(A)(i) litigation appears endless, is very Diversity v. Williams, et al. No. CV–03– of the Act and regulations at 50 CFR expensive, and in the final analysis 2729 AHM (C.D. Cal.)). In settlement of 424.12, in determining which areas to provides relatively little additional that lawsuit, we agreed to submit the propose as critical habitat, we are protection to listed species. final listing determination to the required to base critical habitat The costs resulting from the Federal Register on or by March 1, determinations on the best scientific designation include legal costs, the cost 2004, and if prudent, submit a proposed and commercial data available and to of preparation and publication of the rule to designate critical habitat to the consider those physical and biological designation, the analysis of the Federal Register on or by October 1, features (primary constituent elements economic effects and the cost of 2004, and a final determination (PCEs)) that are essential to the requesting and responding to public regarding critical habitat on or by conservation of the species, and that comment, and in some cases the costs November 1, 2005. The final rule listing may require special management of compliance with the National the four subspecies of the island fox as considerations and protection. These Environmental Policy Act (NEPA). None endangered was published on March 5, include, but are not limited to: space for of these costs result in any benefit to the 2004 (69 FR 10335). individual and population growth and species that is not already afforded by for normal behavior; food, water, air, the protections of the Act enumerated Critical Habitat light, minerals, or other nutritional or earlier, and they directly reduce the Section 4(a)(3) of the Act, as physiological requirements; cover or funds available for direct and tangible amended, and implementing regulations shelter; sites for breeding, reproduction, conservation actions. (50 CFR 424.12) require that we and rearing (or development) of offspring; and habitats that are protected Background designate critical habitat, to the maximum extent prudent and from disturbance or are representative of The Island fox is taxonomically determinable, at the time a species is the historic geographical and ecological divided into six subspecies that are each listed as endangered or threatened. distributions of a species. limited in range to a single island Designation is not prudent when one or The island fox, however, is a habitat (Gilbert et al. 1990; Wayne et al. 1991; both of the following situations exist: (1) generalist in all aspects of its life Collins 1991a, 1993; Goldstein et al.
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