Federal Register / Vol. 65, No. 129 / Wednesday, July 5, 2000 / Proposed Rules 41405

coastal areas from the Nushagak

Peninsula of southwestern Alaska north

to Barrow and east nearly to the

Canadian Border. The species is

threatened by habitat degradation, lead

poisoning, increased predation rates,

and hunting and other human

disturbance. The Steller’s eider is a

seaduck found in coastal and marine

waters from the eastern Aleutian Islands

around the western and northern coasts

of Alaska to the Canada border. The

Alaska-breeding population of this

species is thought to have decreased

significantly, but the causes of the

suspected decline are unknown. On

February 8, 2000, the Service published

a proposed rule (65 FR 6114) to

designate critical habitat for the

spectacled eider, and on March 13,

2000, the Service published a proposed

rule (65 FR 13262) to designate critical

habitat for the Alaska-breeding

population of the Steller’s eider.

The comment period for the proposed

rule designating critical habitat for

spectacled eiders originally closed on

May 8, 2000. The comment period for

the proposed rule designating critical

habitat for Steller’s eiders originally

closed on May 12, 2000. We

subsequently extended the comment

periods for both species to June 30,

2000, in response to concerns expressed

by several parties that the original

comment periods did not allow

adequate time for review and comment

by affected individuals and

communities. Additionally, we

anticipated that the comment periods

for the economic analyses associated

with the proposed critical habitat

designations would be open during June

2000, and we wished to solicit

comments on the proposed rules and

their respective economic analyses

simultaneously. The development of the

economic analyses for the proposed

critical habitat designations was

unexpectedly delayed, and we now

anticipate that the economic analyses

will be available for public review and

comment during August 2000.

Accordingly, to ensure simultaneous

comment on proposed critical habitat

and the associated economic analyses,

the Service is extending the comment

periods for both proposed rules until

August 31, 2000. Written comments

may be submitted to the appropriate

Service office as specified in the

ADDRESSES section.

Our practice is to make comments,

including names and home addresses of

respondents, available for public review

during regular business hours.

Individual respondents may request that

we withhold their home address from

the rulemaking record, which we will

honor to the extent allowable by law. In

certain circumstances, we would

withhold from the rulemaking record a

respondent’s identity, as allowable by

law. If you wish for us to withhold your

name and/or address, you must state

this request prominently at the

beginning of your comment. However,

we will not consider anonymous

comments. We will make all

submissions from organizations or

businesses, and from individuals

identifying themselves as

representatives or officials of

organizations or businesses, available

for public inspection in their entirety.

The deadline for requesting public

hearings on the proposed rule regarding

critical habitat for the spectacled eider

was March 24, 2000. The deadline for

requesting public hearings for the

proposed rule regarding critical habitat

for Steller’s eider was April 27, 2000.

We have not extended these deadlines.

In order to be considered valid, requests

for public hearings must have been

submitted in writing and received at the

appropriate office by the relevant

deadline.

Author: The primary author of this

notice is Susan Detwiler, U.S. Fish and

Wildlife Service, Division of

Endangered Species, 1011 E. Tudor Rd.,

Anchorage, AK 99503.

Authority: The authority for this action is

the Endangered Species Act of 1973 (16

U.S.C. 1531 et seq.).

Dated: June 27, 2000.

Gary Edwards,

Acting Regional Director, Region 7, Fish and

Wildlife Service.

[FR Doc. 00–16923 Filed 7–3–00; 8:45 am]

BILLING CODE 4310–55–U

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AG17

Endangered and Threatened Wildlife

and Plants; Proposed Determination of

Critical Habitat for the Peninsular

Bighorn Sheep

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Proposed rule.

SUMMARY: We, the U.S. Fish and

Wildlife Service (Service), propose

designation of critical habitat for the

Peninsular bighorn sheep pursuant to

the Endangered Species Act of 1973, as

amended (Act). The proposed critical

habitat boundary encompasses

approximately 354,343 hectares (ha)

(875,613 acres (ac)) of Peninsular

bighorn sheep habitat in Riverside, San

Diego, and Imperial Counties,

California.

Critical habitat identifies specific

areas that have physical and biological

features that are essential to the

conservation of a listed species, and that

may require special management

considerations or protection. The

primary elements for the bighorn are

those habitat components that are

essential for the primary biological

needs of feeding, sheltering,

reproduction, dispersal, and genetic

exchange.

If this proposed rule is made final,

section 7 of the Act would prohibit

destruction or adverse modification of

critical habitat by any activity funded,

authorized, or carried out by any

Federal agency.

Section 4 of the Act requires us to

consider economic and other impacts of

specifying any particular area as critical

habitat. We solicit data and comments

from the public on all aspects of this

proposal, including data on economic

and other impacts of the designation.

We may revise this proposal to

incorporate or address new information

received during the comment period.

DATES: Comments from all interested

parties must be received by August 31,

2000. A public hearing is scheduled to

be held on July 20, 2000, in Palm

Springs, Riverside County, California

(see ADDRESSES section below for

details).

ADDRESSES:

Comments: You may submit your

comments and materials concerning this

proposal by any one of several methods.

1. You may mail written comments

and information to the Field Supervisor,

Carlsbad Fish and Wildlife Office, U.S.

Fish and Wildlife Service, 2730 Loker

Avenue West, Carlsbad, California

92008.

2. You may hand-deliver written

comments to our Carlsbad Fish and

Wildlife Office, U.S. Fish and Wildlife

Service, 2730 Loker Avenue West,

Carlsbad, California 92008.

3. You may send comments by

electronic mail (e-mail) to

FW1PBSH@fws.gov. Please submit

comments in ASCII file format and

avoid the use of special characters and

encryption. Please include ‘‘Attn: [RIN

number]’’ and your name and return

address in your e-mail message. If you

do not receive a confirmation from the

system that we have received your email message, contact us directly by

calling our Carlsbad Fish and Wildlife

Office at phone number 760–431–9440.

41406 Federal Register / Vol. 65, No. 129 / Wednesday, July 5, 2000 / Proposed Rules

Public Hearings

We have scheduled two public

hearings for Thursday, July 20, 2000,

from 1 p.m. until 3 p.m. and from 6 p.m.

until 8 p.m. at the Wyndham Palm

Springs Hotel, 888 E. Tahquitz Canyon

Way, Palm Springs, California.

Document Availability

Comments and materials received, as

well as supporting documentation used

in the preparation of this proposed rule,

will be available for public inspection,

by appointment, during normal business

hours at the Carlsbad Fish and Wildlife

Office.

FOR FURTHER INFORMATION CONTACT: Ken

Berg, Field Supervisor, Carlsbad Fish

and Wildlife Office, at the above address

(telephone: 760/431–9440; facsimile

760/431–9624).

SUPPLEMENTARY INFORMATION:

Background

The bighorn sheep (Ovis canadensis)

is a large mammal (family Bovidae)

originally described by Shaw in 1804

(Wilson and Reeder 1993). Wild sheep

became established in North America

after crossing the Bering land bridge

from Eurasia during the late Pleistocene

(Geist 1971), and their range has since

spread to include desert habitats as far

south as northern Mexico (Manville

1980). In North America, two species of

wild sheep currently are recognized: the

thinhorn sheep (Ovis dalli) and the

bighorn sheep (Ovis canadensis).

Peninsular bighorn sheep were once

divided into seven recognized

subspecies based on differences in skull

measurements (Cowan 1940, Buechner

1960, Shackleton 1985). These

subspecies included Audubon bighorn

sheep (Ovis canadensis auduboni),

Peninsular bighorn sheep (Ovis

canadensis cremnobates), Nelson

bighorn sheep (Ovis canadensis

nelsoni), Mexican bighorn sheep (Ovis

canadensis mexicana), Weems bighorn

sheep (Ovis canadensis weemsi),

California bighorn sheep (Ovis

canadensis californiana), and Rocky

Mountain bighorn sheep (Ovis

canadensis canadensis). Audubon

bighorn sheep are now extinct. As

described below, this taxonomy has

since been revised.

The term ‘‘desert bighorn’’ is used to

describe bighorn sheep that inhabit dry

and relatively barren desert

environments and typically includes

bighorn sheep subspecies that have, to

date, been classified as nelsoni,

mexicana, cremnobates, and weemsi

(Manville 1980). The validity of these

subspecies delineations has been

questioned and reassessed. Based on

morphometric and genetic analyses,

Wehausen and Ramey (1993)

synonymized Peninsular bighorn with

the subspecies nelsoni, which is the

current taxonomy.

Bighorn sheep (Ovis canadensis) are

found along the Peninsular Mountain

Ranges from the San Jacinto Mountains

of southern California south into the

Volcan Tres Virgenes Mountains near

Santa Rosalia, Baja California, Mexico, a

total distance of approximately 800

kilometers (km) (500 miles (mi)). The

area occupied by the distinct vertebrate

population segment covered herein

coincides with the range of the former

subspecies Ovis canadensis

cremnobates in California. The

California Fish and Game Commission

listed Ovis canadensis cremnobates as

‘‘rare’’ in 1971. The designation was

changed to ‘‘threatened’’ by the

California Department of Fish and Game

(CDFG) to conform with terminology of

the amended California Endangered

Species Act.

The Peninsular bighorn sheep is

similar in appearance to other desert

bighorn sheep. The coat is pale brown,

and the permanent horns, which

become rough and scarred with age,

vary in color from yellowish-brown to

dark brown. The horns are massive and

coiled in males; in females, they are

smaller and not coiled. In comparison to

other desert bighorn sheep, the

Peninsular bighorn sheep is generally

described as having paler coloration and

having horns with very heavy bases

(Cowan 1940).

The Peninsular bighorn sheep occurs

on steep, open slopes, canyons, and

washes in hot and dry desert regions

where the land is rough, rocky, and

sparsely vegetated. Most of these sheep

live between 91 and 1,219 meters (m)

(300 and 4,000 feet (ft)) in elevation,

where average annual precipitation is

less than 10 centimeters (cm) (4 inches

(in)) and daily high temperatures

average 104° Fahrenheit in the summer.

Caves and other forms of shelter (e.g.,

rock outcrops) are used during

inclement weather. Lambing areas are

associated with ridge benches or canyon

rims adjacent to steep slopes or

escarpments. Alluvial fans (sloping

masses of gravel, sand, clay, and other

sediments that widen out like fans at the

base of canyons and washes) are also

used for breeding, feeding, and

movement.

Peninsular bighorn sheep use a wide

variety of plant species as their food

source (Turner 1976, Scott 1986).

Cunningham (1982) determined that the

bighorn sheep diet in Carrizo Canyon (at

the south end of the U.S. Peninsular

Ranges) consisted of 57 percent shrubs,

32 percent herbaceous annuals and

perennials, 8 percent cacti, and 2

percent grasses. Scott (1986) and Turner

(1976) reported similar diet

compositions at the north end of the

range. Diet composition varied among

seasons (Cunningham 1982, Scott 1986),

presumably because of variability in

forage availability, selection of specific

plant species during different times of

the year (Scott 1986), and seasonal

movements of bighorn sheep. As with

water sources, forage resources near

escape terrain may be most valuable to

bighorn sheep, especially ewes (Bleich

et al. 1997).

Peninsular bighorn sheep typically

produce only one lamb per year. In the

Peninsular Ranges, ewes estimated to be

between 2 and 16 years of age have been

documented to produce lambs

(Ostermann et al. in prep., Rubin et al.

in prep.). Rams are believed to be

capable of successful breeding as early

as 6 months of age (Turner and Hansen

1980). Lambs are born after a gestation

of approximately 174 days (Shackleton

et al. 1984). Lambing occurs from

January through August (Service 1999);

however, most lambs are born between

February and April. Ewes and lambs

frequently occupy steep terrain that

provides escape cover and shelter from

excessive heat; they tend to congregate

near dependable water sources during

the summer. Lambs are able to eat

native grass within 2 weeks of their

birth and are weaned between 4 and 6

months of age.

Bighorn ewes exhibit a high degree of

site fidelity to their home range; this

behavior is learned by their offspring

(Geist 1971). By following older

animals, young bighorn sheep gather

knowledge regarding escape terrain,

water sources, and lambing habitat

(Geist 1971). Ewes that share portions of

a range are likely to be more closely

related to each other than they are to

other ewes (Festa-Bianchet 1991, Boyce

et al. 1999); and are referred to as ‘‘ewe

groups’’ in this proposal. Rams do not

show the same level of site fidelity and

tend to range more widely, often moving

among ewe groups. As young rams

reach 2 to 4 years of age, they follow

older rams away from their birth group

during the fall breeding period, or rut,

and often return after this period (Geist

1971, Festa-Bianchet 1991).

From May through October,

Peninsular bighorn sheep are dependent

on permanent sources of water and are

typically more localized in distribution.

Bighorn sheep populations aggregate

during this period due to a combination

of breeding activities and diminishing

water sources. Summer concentration

areas are associated primarily with

Federal Register / Vol. 65, No. 129 / Wednesday, July 5, 2000 / Proposed Rules 41407

dependable water sources, and ideally

provide a diversity of vegetation to meet

the forage requirements of bighorn

sheep.

Bighorn sheep are primarily diurnal

(Krausman et al. 1985) but may be active

at any time of day or night (Miller et al.

1984). Their daily activity pattern

includes feeding and resting periods. As

bighorn sheep rely on vigilance to detect

predators; they benefit from

gregariousness and group alertness

(Geist 1971, Berger 1978). Within each

ewe group, ewes appear to associate

with other ewes based on their

availability rather than on their

matrilineal (descent through the mother)

relationships (Festa-Bianchet 1991,

Boyce et al. 1999). These subgroups are

dynamic; that is, they may split, reform,

or change membership on a daily or

hourly basis as animals move through

their home ranges.

The decline of the Peninsular bighorn

sheep is attributed to a combination of

factors, including: (1) The effects of

disease and parasitism (Buechner 1960,

DeForge and Scott 1982, DeForge et al.

1982, Jessup 1985, Wehausen et al.

1987, Elliott et al. 1994); (2) low lamb

recruitment (DeForge et al. 1982,

Wehausen et al. 1987, DeForge et al.

1995); (3) habitat loss, degradation, and

fragmentation (Service 1999); and (4)

predation (DeForge et al. 1997, Hayes et

al. in prep.).

Disease has been identified as one of

the factors responsible for population

declines in the Peninsular Ranges and

elsewhere. Analysis of exposure to

disease-causing agents between 1978

and 1990 showed that Peninsular

bighorn sheep populations and

surrounding populations in southern

California have higher levels of

pathogen exposure than other

populations of bighorn sheep in the

State (Elliott et al. 1994). However, tests

of exposure to pathogens have revealed

the presence of antibodies to several

infectious disease agents in healthy as

well as clinically ill animals (Clark et al.

1993, Elliott et al. 1994; DeForge et al.

1997), and essentially all of the viruses,

bacteria, and parasites that have been

reported from Peninsular St. sheep

appear to be widespread among desert

big horn sheep in the western United

States (Jessup et al. 1990). All evidence

indicates that the influence of disease in

the Peninsular Ranges has subsided in

more recent years. For example,

examinations of big horn sheep

throughout the range indicate that most

animals are clinically normal (DeForge

et al. 1997, Borjesson et al. 2000). The

reduced influence of disease on

Peninsular big horn sheep (at the same

time they are in decline) suggests that

other factors, such as predation, habitat

loss and modification, and humanrelated disturbance, currently limit the

population.

In the Peninsular Ranges, a growing

human population and increased

activity adjacent to and within big horn

sheep habitat are adversely affecting big

horn sheep. Human development

impacts sheep through habitat loss,

fragmentation, or other modification;

impacts also extend into big horn sheep

habitat beyond the urban edge. These

include increased noise, predator

attraction, and an increased number of

humans and their pets that venture into

sheep habitat. Numerous researchers

have expressed concern over the impact

that human activity in big horn sheep

habitat has on big horn sheep (e.g.,

Jorgensen and Turner 1973, Hicks 1978,

Leech 1979, Graham 1980, Cunningham

1982, DeForge and Scott 1982, Gross

1987, Smith and Krausman 1988,

Sanchez et al. 1988). Although cases

have been cited in which big horn sheep

populations did not appear to be

impacted by human activity (e.g., Hicks

and Elder 1979, Hamilton et al. 1982),

numerous researchers, including the

previous authors, have documented

altered big horn sheep behavior in

response to human-related disturbance.

In addition to development, a variety of

other human activities, such as hiking,

mountain biking, horseback riding,

camping, hunting, livestock grazing, and

use of aircraft and off-road-vehicles,

have the potential to disrupt normal big

horn sheep social behaviors. Big Horn

sheep may also alter their use of

essential resources resulting in

physiological effects or abandon

traditional habitat as a result of human

disturbance (McQuivey 1978,

MacArthur et al. 1979, Leech 1979,

Leslie and Douglas 1980, Graham 1980,

MacArthur et al. 1982, Bates and

Workman 1983, Miller and Smith 1985,

Krausman and Leopold 1986, Krausman

et al. 1989, Papouchis et al. 1999).

Mountain lion predation is an

apparent limiting factor to some ewe

groups in the Peninsular Ranges (Hayes

et al. In prep.). Reported incidents of

lion predation were not common in the

past and predation was not considered

to be a serious risk to big horn sheep

(Weaver and Mensch 1970, Jorgensen

and Turner 1975, Cunningham 1982),

but the increase in the number of radiocollared big horn sheep since 1993 has

increased the detection of such

mortalities. Such observations need to

be interpreted carefully, however,

because it is possible that changes in

other causes of mortality (such as

diseases) have altered the proportion of

mortalities attributed to lion predation.

Although predation by other species

such as coyotes and bobcats could

reduce lamb recruitment, its impact is

not well understood.

The Peninsular big horn sheep in the

United States declined from an

estimated 1,171 individuals in 1971 to

about 570 individuals in 1991 (Bleach et

al. 1992). Recent estimates now number

the population at approximately 335 in

about eight ewe groups in the wild in

the United States

There are also two captive

populations of Peninsular bighorn

sheep. The Living Desert Museum, an

educational and zoo facility in Palm

Desert, California, maintains a small

group (seven adult females and two

adult males). The Bighorn Institute, also

in Palm Desert, maintains a small

captive herd of approximately 15 to 20

animals. This private, nonprofit

organization, established in 1982

through a Memorandum of

Understanding with the California

Department of Fish and Game, conducts

research and maintains a breeding herd

at its facility. Since 1985, 77 animals

from this herd have been released into

the wild. Releases have occurred in the

northern Santa Rosa Mountains

(seventy-four releases from 1985 to

1998) and in the San Jacinto Mountains

(3 during 1997) (Ostermann et al. in

prep.).

The habitat still remaining for the

Peninsular bighorn sheep in the United

States is managed by: the California

Department of Parks and Recreation

(416,398 ac or 47 percent); California

Department of Fish and Game (25,613 ac

or 3 percent), Bureau of Land

Management (BLM) (228,568 ac or 26

percent), private landowners (149,906

ac or 17 percent), Trust (20,462 ac or 2

percent) (tribal and allotted lands), U.S.

Forest Service (23,073 ac or 3 percent),

and other State and local entities

(11,593 ac or 1 percent).

The Santa Rosa Mountains National

Monument has been proposed in the

Santa Rosa and San Jacinto Mountains.

Since the proposed monument

boundaries have not been finalized, we

do not know how much of the

monument will be within proposed

Peninsular bighorn sheep critical

habitat. The preliminary proposed

monument configuration encompasses a

variety of BLM, U.S. Forest Serivce,

State, and private lands. Approximately

35% of the proposed critical habitat for

Peninsular bighorn sheep overlaps this

configuration.

Previous Federal Action

On September 18, 1985, the Service

designated the Peninsular bighorn sheep

as a category 2 candidate and solicited

41408 Federal Register / Vol. 65, No. 129 / Wednesday, July 5, 2000 / Proposed Rules

status information (50 FR 37958).

Category 2 included taxa for which the

Service had information indicating that

proposing to list as endangered or

threatened was possibly appropriate,

but for which sufficient data on

biological vulnerability and threats were

not currently available to support a

proposed rule. In the January 6, 1989

(54 FR 554), Notice of Review, the

Peninsular bighorn sheep was retained

in category 2. In 1990, we initiated an

internal status review of category 2

species. We completed this review in

the spring of 1991; Peninsular bighorn

sheep were changed from category 2 to

category 1. Category 1 were those taxa

for which we had sufficient information

on biological vulnerability and threats

to support proposals to list them as

endangered or threatened. However, we

inadvertently omitted this change to

category 1 in the November 21, 1991,

Animal Notice of Review (56 FR 58804),

and the Peninsular bighorn sheep

retained category 2 status. Beginning

with our February 28, 1996, Notice of

Review (61 FR 235), we discontinued

the designation of multiple categories of

candidates, and we now consider only

taxa that meet the definition of former

category 1 taxa as candidates for listing.

On July 15, 1991, we received a

petition from the San Gorgonio Chapter

of the Sierra Club to list the Peninsular

bighorn sheep as an endangered species.

The petition requested that the Service

list, through emergency or normal

procedures, the Peninsular bighorn

sheep throughout its entire range.

Alternatively, the petition requested the

listing in at least the Santa Rosa and San

Jacinto mountains of southern

California. The Service used

information from the status review and

the July 15, 1991, petition to determine

that substantial information existed

indicating that the Peninsular bighorn

sheep may be in danger of extinction

throughout all or a significant portion of

its range. This finding was made on

December 30, 1991, pursuant to section

4(b)(3)(A) of the Act and was published

in the Federal Register on May 8, 1992,

as a proposed rule to list the Peninsular

bighorn sheep as endangered (57 FR

19837). The proposed rule constituted

the 1-year finding for the July 15, 1991,

petitioned action. The proposed listing

status was cited in the subsequent

November 15, 1994 (59 FR 58982), and

February 28, 1996 (61 FR 7596), Notices

of Review. On February 14, 1995, the

Sierra Club Legal Defense Fund

(plaintiff) filed suit in Federal District

Court for the Eastern District of

California to compel the Secretary of the

Interior and the Director of the Service

to make a final determination to list the

Peninsular bighorn sheep as an

endangered or threatened species.

On April 10, 1995, Congress enacted

a moratorium prohibiting work on

listing actions (Public Law 104–6), thus

preventing the Service from taking final

listing action on the Peninsular bighorn

sheep. The moratorium was lifted on

April 26, 1996, by means of a

Presidential waiver, at which time

limited funding for listing actions was

made available through the Omnibus

Appropriations Act (Pub. L. No. 104–

134, 100 Stat. 1321, 1996). The Service

published guidance for restarting the

listing program on May 16, 1996 (61 FR

24722).

In response to the Sierra Club Legal

Defense suit, the District Court issued a

stay order on April 10, 1996. On

October 15, 1996, the plaintiff asked the

Court to lift the stay and require the

final Peninsular bighorn sheep listing

decision within 30 days. On November

26, 1996, the District Court entered an

order denying the plaintiff’s request to

lift the stay, but certified the issue

underlying that denial for interlocutory

(temporary) appeal.

Due to new information becoming

available during the lapse between the

original comment period (November 4,

1992) and lifting the listing moratorium,

the Service reopened the public

comment period on April 7, 1997, for 30

days (62 FR 16518). Because of

additional requests, the Service

reopened the public comment period

again on June 17, 1997, for an additional

15 days (62 FR 32733).

To acquire additional information on

the status, distribution, and

management of bighorn sheep in Baja

California, Mexico, the public comment

period was reopened on October 27,

1997 (62 FR 55563), for another 15 days.

During this third and last comment

period extension, the Mexican

Government submitted information that

they had instituted a new conservation

program for bighorn sheep. Due in part

to the implementation of this

conservation program, the southern

boundary of the distinct vertebrate

population segment was re-delineated at

the United States/Mexico International

Border.

On March 18, 1998, the bighorn sheep

occupying the Peninsular Ranges of

southern California were listed as

endangered (63 FR 13134) pursuant to

the Act. At the time of the listing, we

concluded that designation of critical

habitat was not prudent. Service

regulations (50 CFR 424.12(a)(1)) state

that designation of critical habitat is not

prudent when one or both of the

following situations exist: (1) The

identification of critical habitat can be

expected to increase the degree of threat

to the species, or (2) such designation of

critical habitat would not be beneficial

to the species. We concluded that

critical habitat designation for the

Peninsular bighorn sheep was not

prudent because both of the described

situations existed. We were concerned

that publishing detailed maps of

bighorn habitat would encourage human

disturbance in sensitive areas, such as

lambing habitat, rutting areas, and water

sources, and result in increased

disruption of bighorn sheep. We cited

the rapidly growing human population

in the Coachella Valley and the

increasing recreational interest within

bighorn habitat. We also concluded that

designation of critical habitat did not

add an additional regulatory benefit to

bighorn sheep due to the limited

Federal regulatory jurisdiction, through

section 7 of the Act, for the majority of

habitat necessary for conservation of the

species. Therefore, we concluded that

designation of critical habitat could

increase the degree of threats to the

species and would not provide any

additional protection beyond existing

regulatory mechanisms.

On December 18, 1998, the Southwest

Center for Biological Diversity (Center)

and Desert Survivors filed a complaint

against the Service alleging that our

‘‘not prudent’’ findings were

unsubstantiated. On September 17,

1999, we entered into a Settlement

Agreement with the Center and Desert

Survivors that stipulated a schedule for

reviewing our prudency determination

and publishing a Recovery Plan for

Peninsular bighorn sheep. The schedule

included the following dates—draft

Recovery Plan, December 31, 1999; new

proposed critical habitat determination,

June 30, 2000; final Recovery Plan,

October 31, 2000; and final

determination of critical habitat as not

prudent, September 30, 2000, or final

critical habitat, by December 31, 2000.

On December 31, 1999, we published

the draft Recovery Plan for the Bighorn

Sheep in the Peninsular Ranges (Service

1999).

Critical Habitat

Critical habitat is defined in section 3

of the Act as: (i) The specific areas

within the geographic area occupied by

a species, at the time it is listed in

accordance with the Act, on which are

found those physical or biological

features (I) essential to the conservation

of the species and (II) that may require

special management considerations or

protection; and (ii) specific areas

outside the geographic area occupied by

a species at the time it is listed, upon

Federal Register / Vol. 65, No. 129 / Wednesday, July 5, 2000 / Proposed Rules 41409

a determination that such areas are

essential for the conservation of the

species. ‘‘Conservation’’ means the use

of all methods and procedures that are

necessary to bring an endangered or a

threatened species to the point at which

listing under the Act is no longer

necessary.

We have reconsidered our previous

prudency determination regarding the

threats posed by a potential increase in

disturbance of especially sensitive

bighorn areas, such as lambing areas.

Peninsular bighorn sheep distribution is

not solely dependent on isolated habitat

features, but requires a continuum of

essential resources that allows the

species to adapt to natural and

unnatural environmental processes.

Though bighorn sheep exhibit a high

degree of site fidelity to their home

range, their distributions are continually

changing in response to changes in the

environment. Peninsular bighorn sheep

are considered a metapopulation, which

is a group of smaller populations that

occasionally exchange individuals and/

or genetic material, usually through ram

movement. As in any metapopulation,

habitat restriction and fragmentation

can impede dispersal and recolonization

potential, thereby degrading the ability

of the sub populations to interact. This

is particularly true for large mammals

that range widely to locate and exploit

unpredictably changing sources of food,

water, and shelter. Accordingly, we

have used an ecosystem approach to

delineate critical habitat that includes

all of the essential habitat components,

and does not highlight localized bighorn

areas. Consequently, we conclude that

designating critical habitat is not

expected to increase the degree of threat

from human activities.

Furthermore, we have determined

that the limited section 7 nexus for the

majority of Peninsular bighorn habitat,

as discussed in the final listing rule, is

not, by itself, an adequate basis for

making a ‘‘not prudent’’ finding.

Designation of critical habitat will also

provide some educational benefit by

identifying the range-wide habitat

essential to the conservation of the

species, and help provide a focus for

interagency recovery efforts. Therefore,

we now conclude that the benefits of

designating critical habitat outweigh the

potential negative impacts.

Critical habitat receives protection

under the Act through the prohibition

against destruction or adverse

modification of critical habitat as set

forth under section 7 of the Act with

regard to actions carried out, funded, or

authorized by a Federal agency. Section

7 also requires conferences on Federal

actions that are likely to result in the

adverse modification or destruction of

proposed critical habitat. Aside from the

protection that may be provided under

section 7, the Act does not provide other

forms of protection to lands designated

as critical habitat. Critical habitat

designation would not afford any

protection under the Act to activities on

private or other non-Federal lands that

do not involve a Federal action.

Designating critical habitat does not,

in itself, lead to recovery of a listed

species. Designation does not create a

management plan, set aside areas as

preserves, establish numerical

population goals, prescribe specific

management actions (inside or outside

of critical habitat), or directly affect

areas not designated as critical habitat.

Critical habitat identifies specific areas

that have features that are essential to

the conservation of a listed species and

that may require special management

considerations or protection. Specific

management recommendations for areas

designated as critical habitat are most

appropriately addressed in recovery

plans and management plans, and

through section 7 consultation and

section 10 permits.

Methods

In identifying areas that are essential

to conserve the Peninsular bighorn

sheep, we used the best scientific and

commercial data available. This

included data from research and survey

observations published in peerreviewed articles; recovery criteria and

habitat analyses outlined in the draft

Recovery Plan; discussions with, and

data made available through, the

Peninsular Bighorn Sheep Recovery

Team; and regional Geographic

Information System (GIS) coverages.

Primary Constituent Elements

In accordance with section 3(5)(A)(i)

of the Act and regulations at 50 CFR

424.12, in determining which areas to

propose as critical habitat, we are

required to consider those physical and

biological features (primary constituent

elements) that are essential to the

conservation of the species. These

include, but are not limited to, space for

individual and population growth, and

for normal behavior; food, water, air,

light, minerals, or other nutritional or

physiological requirements; cover or

shelter; sites for breeding, reproduction

and rearing of offspring; and habitats

that are protected from disturbance or

are representative of the historic

geographical and ecological distribution

of a species.

The areas that we are proposing to

designate as critical habitat for

Peninsular bighorn sheep provide some

or all of those habitat components

essential for the primary biological

needs of feeding, resting, reproduction

and population recruitment, dispersal,

connectivity between ewe groups, and

isolation from detrimental human

disturbance. The primary biological and

physical constituent elements that are

essential to the conservation of

Peninsular bighorn sheep include space

for the normal behavior of groups and

individuals; protection from

disturbance; availability of a variety of

native desert vegetation, including

alluvial habitat that provides essential

seasonal forage; a range of habitats that

provide forage during periods of

environmental stress, such as drought or

predation; steep, remote habitat for

lambing, rearing of young, and escape

from disturbance and/or predation;

water sources; suitable corridors

allowing individual bighorn to move

freely between ewe groups; and space

and the essential habitat components to

accommodate a recovered population.

Areas with these primary constituent

elements support or have the potential

to support native forage elements, and

provide, or could provide, connectivity

between or within ewe groups.

Criteria Used To Identify Critical

Habitat

The criteria for delineating Peninsular

bighorn habitat was based on biological

information in pertinent literature and

the expert opinion of those most

familiar with bighorn sheep in the

Peninsular Ranges (i.e., the recovery

team). We used a quarter-section grid

based on the Public Land Survey

township, section, range coordinate

system to delineate those areas

identified in the draft recovery plan that

contain the primary constituent

elements. A small area of San Diego

County within the Valle de San Felipe

Land Grant was defined using Universal

Transverse Mercator (UTM) coordinates.

We did not map critical habitat in

sufficient detail to exclude all

developed areas, such as scattered

residential housing in sparsely

inhabited regions, that do not contain

primary constituent elements essential

for bighorn conservation. Within the

delineated critical habitat boundary,

only lands supporting one or more

constituent elements are considered

critical habitat. Road and railroad rightsof-way and flood control facilities that

must be traversed to maintain

connectivity between sub-populations,

or otherwise may provide food, water,

or cover for Peninsular bighorn sheep

are considered to support primary

constituent elements.

41410 Federal Register / Vol. 65, No. 129 / Wednesday, July 5, 2000 / Proposed Rules

We excluded habitat that is not

considered essential to bighorn recovery

from the proposed critical habitat

boundary. This includes areas such as

those that were historically used for

migration between other mountain

ranges but have been eliminated as

migration areas due to development.

While bighorn have been documented to

use areas outside of proposed critical

habitat, these areas are considered to be

non-essential, largely due to

fragmentation and/or proximity to

development.

All proposed critical habitat is

currently occupied and necessary to

maintain connectivity between ewe

groups. Maintaining connectivity

between ewe groups and access to

changing resource availability in a

variable environment is a necessary

component for continued viability of the

metapopulations and to achieve

recovery of Peninsular bighorn. Bighorn

sheep are wide-ranging large animals

that often move great distances. Thus

we consider all critical habitat to be

occupied by the species.

Proposed Critical Habitat Designation

The approximate area of proposed

critical habitat by county and land

ownership is shown in Table 1.

TABLE 1.—APPROXIMATE PROPOSED CRITICAL HABITAT AREA (HECTARES (ACRES)) BY COUNTY AND LAND OWNERSHIP

County Federal*

Trust

(tribal and allotted lands)Local/State Private Total

Riverside ................................................................................. 39,713 ha

(98,135 ac)

6,594 ha

(16,293 ac)

17,725 ha

(43,081 ac)

35,256 ha

(87,121 ac)

99,288 ha

(245,350 ac)

San Diego ............................................................................... 20,112 ha

(49,699 ac)

0 ha

(0 ac)

152,839 ha

(377,677 ac)

16,245 ha

(40,143 ac)

189,196 ha

(467,519 ac)

Imperial ................................................................................... 42,009 ha

(103,808 ac)

1,687 ha

(4,168 ac)

13,001 ha

(32,126 ac)

9,163 ha

(22,642 ac)

65,859 ha

(162,744 ac)

Total ................................................................................. 101,834 ha

(251,642 ac)

8,281 ha

(20,461 ac)

183,565 ha

(453,604 ac)

60,664 ha

(149,906 ac)

354,343 ha

(875,613 ac)

* Federal lands include Bureau of Land Management and National Forest (U.S. Forest Service) lands.

Proposed critical habitat includes

bighorn habitat in Riverside, San Diego,

and Imperial Counties, California. Lands

proposed are under private, Local/State,

Trust (tribal and allotted lands), and

Federal ownership, with Federal lands

including those lands managed by the

Bureau of Land Management (BLM) and

U.S. Forest Service.

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a) of the Act requires

Federal agencies to ensure that actions

they fund, authorize, or carry out do not

destroy or adversely modify critical

habitat to the extent that the action

appreciably diminishes the value of the

critical habitat for the survival and

recovery of the species. Individuals,

organizations, States, local governments,

and other non-Federal entities are

affected by the designation of critical

habitat only if their actions occur on

Federal lands, require a Federal permit,

license, or other authorization, or

involve Federal funding.

Section 7(a) of the Act requires

Federal agencies, including the Service,

to evaluate their actions with respect to

any species that is proposed or listed as

endangered or threatened and with

respect to its critical habitat, if any is

designated or proposed. Regulations

implementing this interagency

cooperation provision of the Act are

codified at 50 CFR part 402. Section

7(a)(4) requires Federal agencies to

confer with us on any action that is

likely to jeopardize the continued

existence of a proposed species or result

in destruction or adverse modification

of proposed critical habitat. Conference

reports provide conservation

recommendations to assist the agency in

eliminating conflicts that may be caused

by the proposed action. The

conservation recommendations in a

conference report are advisory. We may

issue a formal conference report if

requested by a Federal agency. Formal

conference reports on proposed critical

habitat contain a biological opinion that

is prepared according to 50 CFR 402.14,

as if critical habitat were designated. We

may adopt the formal conference report

as the biological opinion when the

critical habitat is designated, if no

significant new information or changes

in the action alter the content of the

opinion (see 50 CFR 402.10(d)).

If a species is listed or critical habitat

is designated, section 7(a)(2) requires

Federal agencies to ensure that actions

they authorize, fund, or carry out are not

likely to jeopardize the continued

existence of such a species or to destroy

or adversely modify its critical habitat.

If a Federal action may affect a listed

species or its critical habitat, the

responsible Federal agency (action

agency) must enter into consultation

with us. Through this consultation we

ensure that the permitted actions do not

destroy or adversely modify critical

habitat.

When we issue a biological opinion

concluding that a project is likely to

result in the destruction or adverse

modification of critical habitat, we also

provide reasonable and prudent

alternatives to the project, if any are

identifiable. Reasonable and prudent

alternatives are defined at 50 CFR

402.02 as alternative actions identified

during consultation that can be

implemented in a manner consistent

with the intended purpose of the action,

that are consistent with the scope of the

Federal agency’s legal authority and

jurisdiction, that are economically and

technologically feasible, and that the

Director believes would avoid

destruction or adverse modification of

critical habitat. Reasonable and prudent

alternatives can vary from slight project

modifications to extensive redesign or

relocation of the project. Costs

associated with implementing a

reasonable and prudent alternative are

similarly variable.

Regulations at 50 CFR 402.16 require

Federal agencies to reinitiate

consultation on previously reviewed

actions in instances where critical

habitat is subsequently designated and

the Federal agency has retained

discretionary involvement or control

over the action or such discretionary

involvement or control is authorized by

law. Consequently, some Federal

agencies may request reinitiation of

consultation or conferencing with us on

actions for which formal consultation

has been completed if those actions may

affect designated critical habitat or

adversely modify or destroy proposed

critical habitat.

Federal Register / Vol. 65, No. 129 / Wednesday, July 5, 2000 / Proposed Rules 41411

Activities on Federal lands that may

affect the Peninsular bighorn sheep or

its critical habitat will require section 7

consultation. Activities on private or

State lands requiring a permit from a

Federal agency, such as a permit from

the Corps under section 404 of the Clean

Water Act, or some other Federal action,

including funding (e.g., Federal

Highway Administration, Federal

Aviation Administration, or Federal

Emergency Management Agency

funding), will also be subject to the

section 7 consultation process. Federal

actions not affecting listed species or

critical habitat and actions on nonFederal lands that are not federally

funded or permitted do not require

section 7 consultation.

Section 4(b)(8) of the Act requires us

to evaluate briefly, in any proposed or

final regulation that designates critical

habitat, those activities involving a

Federal action that may adversely

modify such habitat or that may be

affected by such designation. Activities

that may destroy or adversely modify

critical habitat include those that alter

the primary constituent elements to an

extent that the value of critical habitat

for both the survival and recovery of the

bighorn is appreciably reduced. We note

that such activities may also jeopardize

the continued existence of the species.

Activities that, when carried out,

funded, or authorized by a Federal

agency, may directly or indirectly

adversely affect critical habitat include,

but are not limited to:

(1) Unauthorized destruction or

degradation of habitat (as defined in the

primary constituent elements

discussion), including, but not limited

to, clearing vegetation, bulldozing

terrain, overgrazing, construction, road

building, mining, and disturbing natural

hydrology; and

(2) Appreciably decreasing habitat

value or quality through indirect effects

(e.g., noise, edge effects, low-flying

aircraft, invasion of exotic plants or

animals, or fragmentation).

To properly portray the effects of

critical habitat designation, we must

first compare the section 7 requirements

for actions that may affect critical

habitat with the requirements for

actions that may affect a listed species.

Section 7 prohibits actions funded,

authorized, or carried out by Federal

agencies from jeopardizing the

continued existence of a listed species

or destroying or adversely modifying the

listed species’ critical habitat. Actions

likely to ‘‘jeopardize the continued

existence’’ of a species are those that

would appreciably reduce the

likelihood of the species survival and

recovery. Actions likely to ‘‘destroy or

adversely modify’’ critical habitat are

those that would appreciably reduce the

value of critical habitat for the survival

and recovery of the listed species.

Common to both definitions is an

appreciable detrimental effect on both

survival and recovery of a listed species.

Given the similarity of these definitions,

actions likely to destroy or adversely

modify critical habitat would almost

always result in jeopardy to the species

concerned, particularly when the area of

the proposed action is occupied by the

species concerned. In those cases, the

ramifications of designation of critical

habitat are few or none. However, if

occupied habitat becomes unoccupied

in the future, there is a potential benefit

to designation of critical habitat in such

areas.

Federal agencies already consult with

us on activities in areas currently

occupied by the species to ensure that

their actions do not jeopardize the

continued existence of the species.

These actions include, but are not

limited to:

(1) Regulation of activities affecting

waters of the United States by the Army

Corps of Engineers under section 404 of

the Clean Water Act;

(2) Regulation of water flows,

damming, diversion, and channelization

by Federal agencies;

(3) Regulation of grazing, mining, and

recreation by the Bureau of Land

Management and U.S. Forest Service;

(4) Road construction and

maintenance, right-of-way designation,

and regulation of agricultural activities

by Federal agencies;

(5) Regulation of airspace and flight

plans within the Federal Aviation

Administration jurisdiction;

(6) Military training, maneuvers, and

flights on applicable Department of

Defense lands;

(7) Construction of roads and fences

along the international border with

Mexico, and associated immigration

enforcement activities by the

Immigration and Naturalization Service;

(8) Hazard mitigation and postdisaster repairs funded by the Federal

Emergency Management Agency;

(9) Construction of communication

sites licensed by the Federal

Communications Commission; and

(10) Activities funded by the U.S.

Environmental Protection Agency, U.S.

Department of Energy, or any other

Federal agency.

All proposed critical habitat is

currently occupied and necessary to

maintain connectivity between ewe

groups. Bighorn sheep are wide-ranging

large animals that often move great

distances. Thus we consider all critical

habitat to be occupied by the species. As

Federal agencies already consult with us

on activities in these areas that may

affect the species to ensure that their

actions do not jeopardize the continued

existence of the species; we do not

anticipate that additional regulatory

protection will result from critical

habitat designation.

Relationship to Habitat Conservation

Plans

We expect that critical habitat may be

used as a tool to identify those areas

essential for the conservation of the

species, and we will encourage

development of Habitat Conservation

Plans (HCPs) for such areas on nonFederal lands. Habitat conservation

plans currently under development are

intended to provide for protection and

management of habitat areas essential

for the conservation of the Peninsular

bighorn sheep, while directing

development and habitat modification

to nonessential areas of lower habitat

value. The HCP development process

provides an opportunity for more

intensive data collection and analysis

regarding the use of particular habitat

areas by the Peninsular bighorn sheep.

The process also enables us to conduct

detailed evaluations of the importance

of such lands to the long-term survival

of the species in the context of

constructing a biologically configured

system of interlinked habitat blocks.

The Coachella Valley Multiple

Species Habitat Conservation Plan,

currently under preparation, proposes

coverage for Peninsular bighorn sheep.

This effort represents an important

opportunity to address the long-term

conservation needs of Peninsular

bighorn sheep throughout the private

lands under city and county jurisdiction

in Riverside County, and to integrate

management with intermixed public

lands. Within Imperial and San Diego

Counties, Federal land ownership

patterns, Federal funding and

permitting, and extensive habitat

protection on State lands, limit the

prospects for HCPs that would include

Peninsular bighorn sheep. We fully

expect that HCPs undertaken by local

jurisdictions (e.g., counties, cities) and

other parties will identify, protect, and

provide appropriate management for

those specific lands within the

boundaries of the plans that are

essential for the long-term conservation

of the species. We believe and fully

expect that our analyses of proposed

HCPs and proposed projects under

section 7 will show that covered

activities carried out in accordance with

the provisions of the HCPs and

biological opinions will not result in

41412 Federal Register / Vol. 65, No. 129 / Wednesday, July 5, 2000 / Proposed Rules

destruction or adverse modification of

critical habitat.

We provide technical assistance and

work closely with applicants throughout

the development of HCPs to identify

lands essential for the long-term

conservation of the Peninsular bighorn

sheep and appropriate conservation and

management actions. Several HCP

efforts are currently under way that

address listed and nonlisted species in

areas within the range of the Peninsular

bighorn sheep and in areas we propose

as critical habitat. These HCPs, which

will incorporate appropriate adaptive

management, should provide for the

conservation of the species. We are

soliciting comments on whether future

approval of HCPs and issuance of

section 10(a)(1)(B) permits for the

Peninsular bighorn sheep should trigger

revision of designated critical habitat to

exclude lands within the HCP area and,

if so, by what mechanism (see Public

Comments Solicited section).

If you have questions regarding

whether specific activities will

constitute adverse modification of

critical habitat, contact the Field

Supervisor, Carlsbad Fish and Wildlife

Offices (see ADDRESSES section).

Requests for copies of the regulations on

listed wildlife, and inquiries about

prohibitions and permits may be

addressed to the U.S. Fish and Wildlife

Service, Branch of Endangered Species,

911 N.E. 11th Ave, Portland, OR 97232

(telephone 503/231–2063; facsimile

503/231–6243).

Economic Analysis

Section 4(b)(2) of the Act requires us

to designate critical habitat on the basis

of the best scientific and commercial

data available and to consider the

economic and other relevant impacts of

designating a particular area as critical

habitat. We may exclude areas from

critical habitat upon a determination

that the benefits of such exclusions

outweigh the benefits of designating

these areas as critical habitat. We cannot

exclude areas from critical habitat when

the exclusion will result in the

extinction of the species. We will

conduct an analysis of the economic

impacts of designating these areas as

critical habitat prior to making a final

determination. When completed, we

will announce the availability of the

draft economic analysis with a notice in

the Federal Register, and we will open

a 30-day comment period at that time.

Public Comments Solicited

We intend that any final action

resulting from this proposal will be as

accurate and as effective as possible.

Therefore, we solicit comments or

suggestions from the public, other

concerned governmental agencies, the

scientific community, industry, or any

other interested party concerning this

proposed rule. We particularly seek

comments concerning:

(1) The reasons why any habitat

should or should not be determined to

be critical habitat as provided by section

4 of the Act, including whether the

benefits of designation will outweigh

any benefits of exclusion;

(2) Specific information on the

amount and distribution of Peninsular

bighorn sheep habitat, and what habitat

is essential to the conservation of the

species, and why;

(3) Land use practices and current or

planned activities in the subject areas

and their possible impacts on proposed

critical habitat;

(4) Any foreseeable economic or other

impacts resulting from the proposed

designation of critical habitat, in

particular, any impacts on small entities

or families; and,

(5) Economic and other values

associated with designating critical

habitat for the Peninsular bighorn

sheep, such as those derived from

nonconsumptive uses (e.g. enhanced

watershed protection, increased soil

retention, ‘‘existence values,’’ and

reductions in administrative costs).

There are conservation-planning

efforts now under way in areas we are

proposing as critical habitat for the

Peninsular bighorn sheep. We believe

that areas covered by an approved HCP

for the species would provide the longterm commitments necessary for the

conservation of the species and would

not meet the definition of critical habitat

because they would not need special

management consideration or

protections. However, these HCPs are

still being developed. Here we are

proposing to designate critical habitat

for areas that we believe are essential to

the conservation of the species and need

special management or protection.

We invite comments on the following,

or other alternative approaches, for

addressing critical habitat within the

boundaries of future approved HCPs

upon issuance of section 10(a)(1)(B)

permits for the Peninsular bighorn

sheep:

(1) Retain critical habitat designation

within the HCP boundaries and use the

section 7 consultation process on the

issuance of the incidental take permit to

ensure that any take we authorize will

not destroy or adversely modify critical

habitat;

(2) Revise the critical habitat

designation upon approval of the HCP

and issuance of the section 10(a)(1)(B)

permit to retain only preserve areas, on

the premise that they encompass areas

essential for the conservation of the

species within the HCP area and require

special management and protection in

the future. Assuming that we conclude,

at the time an HCP is approved and the

associated incidental take permit is

issued, that the plan protects those areas

essential to the conservation of the

Peninsular bighorn sheep, we would

revise the critical habitat designation to

exclude areas outside any reserves,

preserves, or other conservation lands

established under the plan. Consistent

with our listing program priorities, we

would publish a proposed rule in the

Federal Register to revise the critical

habitat boundaries;

(3) As in (2) above, retain only

preserve lands within the critical habitat

designation, on the premise that they

encompass areas essential for

conservation of the species within the

HCP area and require special

management and protection in the

future. However, under this approach,

the exclusion of areas outside the

preserve lands from critical habitat

would occur automatically upon

issuance of the incidental take permit.

The public would be notified and have

the opportunity to comment on the

boundaries of the preserve lands and the

revision of designated critical habitat

during the public review and comment

process for HCP approval and

permitting;

(4) Remove designated critical habitat

entirely from within the boundaries of

an HCP when the plan is approved

(including preserve lands), on the

premise that the HCP establishes longterm commitments to conserve the

species, and no additional special

management or protection is required.

This exclusion from critical habitat

would occur automatically upon

issuance of the incidental take permit.

The public would be notified and have

the opportunity to comment on the

revision of designated critical habitat

during the public notification process

for HCP approval and permitting; or

(5) Remove designated critical habitat

entirely from within the boundaries of

an HCP when the plan is approved

(including preserve lands), on the

premise that the HCP establishes longterm commitments to conserve the

species, and no further special

management or protection is required.

Consistent with our listing program

priorities, we would publish a proposed

rule in the Federal Register to revise the

critical habitat boundaries.

Our practice is to make comments,

including names and home addresses of

respondents, available for public review

during regular business hours.

Federal Register / Vol. 65, No. 129 / Wednesday, July 5, 2000 / Proposed Rules 41413

Individual respondents may request that

we withhold their home address from

the rulemaking record, which we will

honor to the extent allowable by law. In

some circumstances, we would

withhold from the rulemaking record a

respondent’s identity, as allowable by

law. If you wish for us to withhold your

name and/or address, you must state

this request prominently at the

beginning of your comment. However,

we will not consider anonymous

comments. We will make all

submissions from organizations or

businesses, and from individuals

identifying themselves as

representatives or officials of

organizations or businesses, available

for public inspection in their entirety.

Peer Review

In accordance with our policy

published on July 1, 1994 (59 FR

34270), we will seek the expert opinions

of at least three appropriate and

independent specialists regarding this

proposed rule. The purpose of such

review is to ensure decisions are based

on scientifically sound data,

assumptions, and analyses. We will

send these peer reviewers copies of this

proposed rule immediately following

publication in the Federal Register. We

will invite these peer reviewers to

comment, during the public comment

period, on the specific assumptions and

conclusions regarding the proposed

designation of critical habitat.

We will consider all comments and

data received during the 60-day

comment period on this proposed rule

during preparation of a final

rulemaking. Accordingly, the final

decision may differ from this proposal.

Public Hearings

The Act provides for one or more

public hearings on this proposal. Given

the large geographic area covered by this

proposal, the likelihood of requests, and

the need to publish the final

determination by December 31, 2000,

we have scheduled two public hearings.

The hearings are scheduled to be held

on Thursday, July 20, 2000, from 1 p.m.

until 3 p.m. and from 6 p.m. until 8 p.m.

at the Wyndham Palm Springs Hotel,

888 E. Tahquitz Canyon Way, Palm

Springs, California. Written comments

submitted during the comment period

will receive equal consideration as

comments presented at the public

hearing. For additional information on

the public hearing see the ADDRESSES

section.

Clarity of the Rule

Executive Order 12866 requires each

agency to write regulations/notices that

are easy to understand. We invite your

comments on how to make proposed

rules easier to understand including

answers to questions such as the

following: (1) Are the requirements in

the document clearly stated? (2) Does

the proposed rule contain technical

language or jargon that interferes with

the clarity? (3) Does the format of the

proposed rule (grouping and order of

sections, use of headings, paragraphing,

etc.) aid or reduce its clarity? (4) Is the

description of the proposed rule in the

SUPPLEMENTARY INFORMATION section of

the preamble helpful in understanding

the proposed rule? (5) What else could

we do to make the proposed rule easier

to understand?

Required Determinations

Regulatory Planning and Review

In accordance with Executive Order

12866, this document is a significant

rule and has been reviewed by the

Office of Management and Budget

(OMB), under Executive Order 12866.

(a) In the economic analysis, we will

determine if this rule will have an

annual economic effect of $100 million

or adversely affect an economic sector,

productivity, jobs, the environment, or

other units of government. The

Peninsular bighorn sheep was listed as

an endangered species in 1998. In fiscal

years 1998 through 2000 we have

conducted three formal section 7

consultations with other Federal

agencies to ensure that their actions

would not jeopardize the continued

existence of the species.

Under the Act, critical habitat may

not be adversely modified by a Federal

agency action; critical habitat does not

impose any restrictions on non-Federal

persons unless they are conducting

activities funded or otherwise

sponsored or permitted by a Federal

agency (see Table 2 below).

TABLE 2.—IMPACTS OF PENINSULAR BIGHORN SHEEP LISTING AND CRITICAL HABITAT DESIGNATION

Categories of activities Activities potentially affected by species listing only

Additional activities potentially affected by critical habitat designation

Federal activities potentially

affected.

Activities such as those affecting U.S. waters by the Army Corps of Engineers under

section 404 of the Clean Water Act; Regulation of water flows, damming, diversion,

and channelization by Federal agencies; Regulation of grazing, mining, and recreation by the Bureau of Land Management and U.S. Forest Service; Road construction and maintenance, right-of-way designation, and regulation of agricultural activities; Regulation of airspace and flight plans within the Federal Aviation Administration jurisdiction; Military training, maneuvers, and flights on applicable Department

of the Defense lands; Construction of roads and fences along the international border with Mexico, and associated immigration enforcement activities by the Immigration and Naturalization Service; Hazard mitigation and post-disaster repairs funded

by the Federal Emergency Management Agency; Construction of communication

sites licensed by the Federal Communications Commission; and Activities funded

by the U.S. Environmental Protection Agency, U.S. Department of Energy, or any

other Federal agency.

None.

Private or other non-Federal

Activities potentially affected.

Activities that destroy bighorn whether directly (e.g. grading, overgrazing, construction, road building, mining, etc.) or through indirect effects (e.g. noise, edge effects,

invasion of exotic species, or fragmentation) that require a Federal action (permit,

authorization, or funding).

None.

Section 7 requires Federal agencies to

ensure that they do not jeopardize the

continued existence of the species.

Based upon our experience with the

species and its needs, we conclude that

any Federal action or authorized action

that could potentially cause an adverse

modification of the proposed critical

habitat would currently be considered

as ‘‘jeopardy’’ under the Act.

Accordingly, the designation of critical

habitat does not have any incremental

41414 Federal Register / Vol. 65, No. 129 / Wednesday, July 5, 2000 / Proposed Rules

impacts above the listing on what

actions may or may not be conducted by

Federal agencies or non-Federal persons

that receive Federal authorization or

funding. Non-Federal persons that do

not have any Federal involvement with

their actions are not restricted by the

designation of critical habitat, however,

they continue to be bound by the

provisions of the Act concerning ‘‘take’’

of the species.

(b) This rule will not create

inconsistencies with other agencies’

actions. As discussed above, Federal

agencies have been required to ensure

that their actions do not jeopardize the

continued existence of the Peninsular

bighorn sheep since the listing in 1998.

The prohibition against adverse

modification of critical habitat is not

expected to impose any additional

restrictions to those that currently exist

in occupied areas of proposed critical

habitat. Because of the potential for

impacts on other Federal agency

activities, we will continue to review

this proposed action for any

inconsistencies with other Federal

agency actions.

(c) This rule will not materially affect

entitlements, grants, user fees, loan

programs, or the rights and obligations

of their recipients. Federal agencies are

currently required to ensure that their

activities do not jeopardize the

continued existence of the species, and

as discussed above, we do not anticipate

that the adverse modification

prohibition (resulting from critical

habitat designation) will have any

incremental effects.

(d) This rule will not raise novel legal

or policy issues. The proposed rule

follows the requirements for

determining critical habitat contained in

the Endangered Species Act.

Regulatory Flexibility Act (5 U.S.C. 601

et seq.)

In the economic analysis (under

section 4 of the Act), we will determine

whether designation of critical habitat

will have a significant effect on a

substantial number of small entities. As

discussed under the Regulatory

Planning and Review section, this rule

is not expected to result in any

restrictions in addition to those

currently in existence. As indicated on

Table 1 (see Proposed Critical Habitat

Designation section) we have designated

critical habitat on property owned by

Federal, State, Tribal, and local

governments, and private property.

Within these areas, the types of

Federal actions or authorized activities

that we have identified as potential

concerns are:

(1) Regulation of activities affecting

waters of the United States by the Army

Corps of Engineers under section 404 of

the Clean Water Act;

(2) Regulation of water flows,

damming, diversion, and channelization

by Federal agencies;

(3) Regulation of grazing, mining, and

recreation by the Bureau of Land

Management and U.S. Forest Service;

(4) Road construction and

maintenance, right-of-way designation,

and regulation of agricultural activities

by Federal agencies;

(5) Regulation of airspace and flight

plans within the Federal Aviation

Administration jurisdiction;

(6) Military training, maneuvers, and

flights by Department of Defense lands;

(7) Construction of roads and fences

along the International Border with

Mexico, and associated immigration

enforcement activities by the

Immigration and Naturalization Service;

(8) Hazard mitigation and postdisaster repairs funded by the Federal

Emergency Management Agency;

(9) Construction of communication

sites licensed by the Federal

Communications Commission; and,

(10) Activities funded by the U.S.

Environmental Protection Agency, U.S.

Department of Energy, or any other

Federal agency.

Many of these activities sponsored by

Federal agencies within the proposed

critical habitat areas are carried out by

small entities (as defined by the

Regulatory Flexibility Act) through

contract, grant, permit, or other Federal

authorization. As discussed above, these

actions are currently required to comply

with the listing protections of the Act,

and the designation of critical habitat is

not anticipated to have any additional

effects on these activities.

For actions on non-Federal property

that do not have a Federal nexus (such

as funding or authorization), the current

restrictions concerning ‘‘take’’ of the

species remain in effect, and this rule

will have no additional restrictions.

Small Business Regulatory Enforcement

Fairness Act (5 U.S.C. 804(2))

In the economic analysis, we will

determine whether designation of

critical habitat will cause (a) any effect

on the economy of $100 million or

more, (b) any increases in costs or prices

for consumers, individual industries,

Federal, State, or local government

agencies, or geographic regions in the

economic analysis, or (c) any significant

adverse effects on competition,

employment, investment, productivity,

innovation, or the ability of U.S.-based

enterprises to compete with foreignbased enterprises.

Unfunded Mandates Reform Act (2

U.S.C. 1501 et seq.)

In accordance with the Unfunded

Mandates Reform Act (2 U.S.C. 1501 et

seq.):

(a) This rule will not ‘‘significantly or

uniquely’’ affect small governments. A

Small Government Agency Plan is not

required. Small governments will only

be affected to the extent that any

programs having Federal funds, permits

or other authorized activities must

ensure that their actions will not

adversely affect the critical habitat.

However, as discussed above, these

actions are currently subject to

equivalent restrictions through the

listing protections of the species, and no

further restrictions are anticipated.

(b) This rule will not produce a

Federal mandate of $100 million or

greater in any year, that is, it is not a

‘‘significant regulatory action’’ under

the Unfunded Mandates Reform Act.

The designation of critical habitat

imposes no obligations on State or local

governments.

Takings

In accordance with Executive Order

12630, the rule does not have significant

takings implications. A takings

implication assessment is not required.

As discussed above, the designation of

critical habitat affects only Federal

agency actions. The rule will not

increase or decrease the current

restrictions on private property

concerning take of the Peninsular

bighorn sheep. Due to current public

knowledge of the species protection, the

prohibition against take of the species

both within and outside of the

designated areas, and the fact that

critical habitat provides no incremental

restrictions, we do not anticipate that

property values will be affected by the

critical habitat designation.

Additionally, critical habitat

designation does not preclude

development of habitat conservation

plans and issuance of incidental take

permits. Landowners in areas that are

included in the designated critical

habitat will continue to have

opportunity to utilize their property in

ways consistent with the survival of the

bighorn.

Federalism

In accordance with Executive Order

13132, the rule does not have significant

Federalism effects. A Federalism

assessment is not required. In keeping

with Department of the Interior and

Department of Commerce policy, the

Service requested information from, and

coordinated development of this critical

Federal Register / Vol. 65, No. 129 / Wednesday, July 5, 2000 / Proposed Rules 41415

habitat proposal with, appropriate State

resource agencies in California, as well

as during the listing process. The

designation of critical habitat for

Peninsular bighorn sheep imposes no

additional restrictions to those currently

in place, and, therefore, has little

incremental impact on State and local

governments and their activities. The

designation may have some benefit to

these governments in that the areas

essential to the conservation of the

species are more clearly defined, and

the primary constituent elements of the

habitat necessary to the survival of the

species are specifically identified. While

making this definition and

identification does not alter where and

what federally sponsored activities may

occur, it may assist these local

governments in long-range planning

(rather than waiting for case-by-case

section 7 consultations to occur) and

may lead to quicker recovery of the

species.

Civil Justice Reform

In accordance with Executive Order

12988, the Office of the Solicitor has

determined that the rule does not

unduly burden the judicial system and

meets the requirements of sections 3(a)

and 3(b)(2) of the Order. We designate

critical habitat in accordance with the

provisions of the Act and plan public

hearings on the proposed designation

during the comment period. The rule

uses standard property descriptions and

identifies the primary constituent

elements within the designated areas to

assist the public in understanding the

habitat needs of the Peninsular bighorn

sheep.

Paperwork Reduction Act of 1995 (44

U.S.C. 3501 et seq.)

This rule does not contain any

information collection requirements for

which Office of Management and

Budget approval under the Paperwork

Reduction Act is required.

National Environmental Policy Act

We have determined that we do not

need to prepare an Environmental

Assessment and/or an Environmental

Impact Statement as defined by the

National Environmental Policy Act of

1969 in connection with regulations

adopted pursuant to section 4(a) of the

Act. We published a notice outlining

our reasons for this determination in the

Federal Register on October 25, 1983

(48 FR 49244).

Government-to-Government

Relationship With Tribes

We have determined that there are

Tribal Trust lands essential for the

conservation of the Peninsular bighorn

sheep because they contain the primary

constituent elements that support

Peninsular bighorn sheep populations,

and provide essential linkages between

ewe groups in the Peninsular Ranges

metapopulation. Therefore, we are

proposing to designate critical habitat

for the bighorn on Trust lands of the

Morongo Band of Mission Indians, Aqua

Caliente Band of Cahuilla Indians, and

Torres-Martinez Desert Cahuilla

Indians. Subsequent to this proposal, we

will consult with the Tribes before

making a final determination as to

whether any Tribal lands should be

included as critical habitat for the

Peninsular bighorn sheep. We will

consider whether these Tribal lands

require special management

considerations or protection; we may

also exclude some or all of these lands

from critical habitat upon a

determination that the benefits of

excluding them outweighs the benefits

of designating these areas as critical

habitat, as provided under section

4(b)(2) of the Act. This consultation will

take place under the auspices of

Secretarial Order 3206 and the

Presidential Memorandum of April 29,

1994, which require us to coordinate

with federally recognized Tribes on a

Government-to-Government basis.

Lands within the Aqua Caliente

Reservation necessary to the survival

and recovery of Peninsular bighorn

sheep occur within the current home

range of the San Jacinto Mountains ewe

group and provide a dispersal linkage to

the northern Santa Rosa Mountains ewe

group. The Tribe and Service are

coordinating on the development of a

habitat management plan that would

protect Peninsular bighorn sheep and

more clearly define how Indian lands

would contribute to regional

conservation planning and the overall

recovery program for Peninsular bighorn

sheep. This management plan will be

considered in our final decision on

critical habitat designation.

On the Torres-Martinez Reservation,

the Tribe and Service are coordinating

on a habitat analysis and will complete

a management plan, if appropriate, prior

to making a decision on the value of

Reservation lands to conservation of

bighorn sheep.

References Cited

A complete list of all references cited

in this proposed rule is available upon

request from the Carlsbad Fish and

Wildlife Office (see ADDRESSES section).

Author

The primary authors of this notice are

the Carlsbad Fish and Wildlife Office

staff (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species,

Exports, Imports, Reporting and

recordkeeping requirements,

Transportation.

Proposed Regulation Promulgation

For the reasons given in the preamble,

we propose to amend 50 CFR part 17 as

set forth below:

PART 17—[AMENDED]

1. The authority citation for Part 17

continues to read as follows:

Authority: 16 U.S.C. 1361–1407; 16 U.S.C.

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–

625, 100 Stat 3500; unless otherwise noted.

2. In § 17.11(h) revise the entry for

‘‘Sheep, bighorn’’ under ‘‘MAMMALS’’

to read as follows:

§ 17.11 Endangered and threatened

wildlife.

* * * * *

(h) * * *

41416 Federal Register / Vol. 65, No. 129 / Wednesday, July 5, 2000 / Proposed Rules

Species

Historic range

Vertebrate

population where

endangered or

threatened

Status When listed Critical

habitat

Special

rules Common name Scientific name

MAMMALS

*******

Sheep, bighorn ......... Ovis canadensis ...... U.S.A. (western

conterminous

States), Canada

(southwestern),

Mexico (northern).

U.S.A., (CA) Peninsular Ranges.E 634 17.95(a) NA

*******

3. In § 17.95 add critical habitat for

the bighorn sheep (Peninsular Ranges)

(Ovis canadensis) under paragraph (a)

in the same alphabetical order as this

species occurs in § 17.11(h), to read as

follows:

§ 17.95 Critical habitat—fish and wildlife.

* * * * *

(a) Mammals.

* * * * *

Bighorn sheep (Peninsular Ranges) (Ovis

canadensis)

1. Critical habitat is depicted for

Riverside, San Diego, and Imperial

Counties, California, on the maps below.

BILLING CODE 4310–55–P

Federal Register / Vol. 65, No. 129 / Wednesday, July 5, 2000 / Proposed Rules 41417

41418 Federal Register / Vol. 65, No. 129 / Wednesday, July 5, 2000 / Proposed Rules

2. Within these areas, the primary

constituent elements for Peninsular

bighorn sheep are those habitat

components that are essential for the

primary biological needs of feeding,

resting, reproduction and population

recruitment, dispersal, connectivity

between ewe groups, and isolation from

detrimental human disturbance. The

principal biological and physical

constituent elements that are essential

to the conservation of Peninsular

bighorn sheep includes space for the

normal behavior of groups and

individuals; protection from

disturbance; availability of a variety of

native desert vegetation, including

alluvial habitat that provides essential

seasonal forage; the ability to utilize a

range of habitats during periods of

environmental stress, such as drought or

predation; steep, remote habitat for

lambing, rearing of young, and escape

from disturbance and/or predation;

water sources; the ability of individual

bighorn to move freely between ewe

groups; space and the essential habitat

components to accommodate a

recovered population. Primary

constituent elements exist in areas that

support, or have the potential to

support, native forage elements and

provide, or could provide, connectivity

between or within ewe groups. These

areas and associated habitat that provide

the variety of necessary habitat

components and connectivity were used

to identify critical habitat.

Map Unit 1: Riverside County,

California. From USGS 1:100,000

quadrangle maps Borrego Valley (1982),

and Palm Springs (1982), California.

Lands within T3S, R2E, S13; T3S, R2E,

S14SE; T3S, R2E, S14NE; T3S, R2E,

S23–S26; T3S, R2E, S27NE; T3S, R2E,

S27SE; T3S, R3E, S7SE; T3S, R3E,

S7SW; T3S, R3E, S8SE; T3S, R3E,

S8SW; T3S, R3E, S9SW; T3S, R3E,

S15SE; T3S, R3E, S15SW; T3S, R3E,

S16NW; T3S, R3E, S16SW; T3S, R3E,

S17–S30; T3S, R3E, S31NW; T3S, R3E,

S31NE; T3S, R3E, S32–S36; T3S, R4E,

S29NW; T3S, R4E, S29SW; T3S, R4E,

S29SE; T3S, R4E, S30–S32; T3S, R4E,

S33NW; T3S, R4E, S33SW; T3S, R4E,

S33SE; T4S, R3E, S1–S4; T4S, R3E,

S5NW; T4S, R3E, S5NE; T4S, R3E,

S5SE; T4S, R3E, S9NE; T4S, R3E,

S9NW; T4S, R3E, S10NW; T4S, R3E,

S10NE; T4S, R3E, S11NW; T4S, R3E,

S11NE; T4S, R3E, S11SE; T4S, R3E,

S12–S13; T4S, R3E, S14NE; T4S, R4E,

S3NW; T4S, R4E, S3SW; T4S, R4E, S4–

S9; T4S, R4E, S10NW; T4S, R4E,

S10SW; T4S, R4E, S15–S18; T4S, R4E,

S19NW; T4S, R4E, S19NE; T4S, R4E,

S19SE; T4S, R4E, S20–S22; T4S, R4E,

S25SW; T4S, R4E, S25SE; T4S, R4E,

S27–S30; T4S, R4E, S31NE; T4S, R4E,

S31SE; T4S, R4E, S32–34; T4S, R4E,

S35SE; T4S, R4E, S35NE; T4S, R4E,

S36; T4S, R5E, S29SE; T4S, R5E,

S29SW; T4S, R5E, S30NW; T4S, R5E,

S30SW; T4S, R5E, S30SE; T4S, R5E,

S31–S32; T4S, R5E, S33NW; T4S, R5E,

S33SW; T5S, R4E, S1–S5; T5S, R4E, S8–

S17; T5S, R4E, S20NE; T5S, R4E, S21–

S27; T5S, R4E, S28NE; T5S, R4E, S34–

S36; T5S, R5E, S2SW; T5S, R5E, S3–

S11; T5S, R5E, S12SW; T5S, R5E,

S13NW; T5S, R5E, S13SW; T5S, R5E,

S13SE; T5S, R5E, S14–35; T5S, R5E,

S36NW; T5S, R5E, S36NE; T5S, R5E,

S36SW; T5S, R6E, S18SW; T5S, R6E,

S19NW; T5S, R6E, S19SW; T5S, R6E,

S23SW; T5S, R6E, S25–S27; T5S, R6E,

S28SW; T5S, R6E, S28SE; T5S, R6E,

S30; T5S, R6E, S31NW; T5S, R6E,

S31SE; T5S, R6E, 32SW; T5S, R6E,

S32SE; T5S, R6E, S33–S36; T5S, R7E,

S30NW; T5S, R7E, S30SW; T5S, R7E,

S31NW; T6S, R4E, S1–S2; T6S, R4E,

S3NW; T6S, R4E, S3NE; T6S, R4E, S11–

S13; T6S, R4E, S14NW; T6S, R4E,

S14NE; T6S, R4E, S14SE; T6S, R4E,

S23NE; T6S, R4E, S24; T6S, R4E,

S25NW; T6S, R4E, S25NE; T6S, R5E,

S1NW; T6S, R5E, S1SW; T6S, R5E,

S1SE; T6S, R5E, S2–S19; T6S, R5E,

S21NW; T6S, R5E, S21NE; T6S, R5E,

S21SE; T6S, R5E, S22–S27; T6S, R5E,

S28NE; T6S, R5E, S28SE; T6S, R5E,

S35NW; T6S, R5E, S35NE; T6S, R5E,

S35SE; T6S, R5E, S36; T6S, R6E, S1NW;

T6S, R6E, S1SW; T6S, R6E, S2–S5; T6S,

R6E, S6NE; T6S, R6E, S6SE; T6S, R6E,

S6SW; T6S, R6E, S7–S11; T6S, R6E,

S12NW; T6S, R6E, S12SW; T6S, R6E,

S13–S36; T6S, R7E, S6SE; T6S, R7E, S7;

T6S, R7E, S8SW; T6S, R7E, S8SE; T6S,

R7E, S17–S19; T6S, R7E, S20NW; T6S,

R7E, S20NE; T6S, R7E, S20SW; T6S,

R7E, S28NW; T6S, R7E, S28SW; T6S,

R7E, S28SE; T6S, R7E, S29–S33; T7S,

R5E, S1; T7S, R5E, S2NE; T7S, R5E,

S2SE; T7S, R5E, S2SW; T7S, R5E, S11–

S12; T7S, R6E, S1–S6; T7S, R6E, S7NW;

T7S, R6E, S7NE; T7S, R6E, S9NE; T7S,

R6E, S9NW; T7S, R6E, S9SE; T7S, R6E,

S10–S14; T7S, R6E, S15NE; T7S, R6E,

S23–S26; T7S, R6E, S27NE; T7S, R6E,

S27SE; T7S, R6E, S34SE; T7S, R6E,

S35–S36; T7S, R7E, S3NW; T7S, R7E,

S3SW; T7S, R7E, S3SE; T7S, R7E, S4–

S10; T7S, R7E, S11NW; T7S, R7E,

S11SE; T7S, R7E, S11SW; T7S, R7E,

S13NW; T7S, R7E, S13SE; T7S, R7E,

S13SW; T7S, R7E, S14–S36; T7S, R8E,

S19NW; T7S, R8E, S19SW; T7S, R8E,

S29SW; T7S, R8E, S30–S31; T7S, R8E,

S32NW; T7S, R8E, S32SW; T8S, R4E,

S24–S25; T8S, R4E, S36NE; T8S, R4E,

S36SE; T8S, R5E, S19–S36; T8S, R6E,

S1–S3; T8S, R6E, S7SE; T8S, R6E, S8–

S17; T8S, R6E, S18NE; T8S, R6E,

S18SE; T8S, R6E, S18SW; T8S, R6E,

S19–S36; T8S, R7E, S1–S36; T8S, R8E,

S6NW; T8S, R8E, S6SW; T8S, R8E, S7–

S8; T8S, R8E, S16NW; T8S, R8E,

S16SW; T8S, R8E, S17–S20; T8S, R8E,

S21NW; T8S, R8E, S21SE; T8S, R8E,

S21SW; T8S, R8E, S27SW; T8S, R8E,

S28–S34.

Federal Register / Vol. 65, No. 129 / Wednesday, July 5, 2000 / Proposed Rules 41419

41420 Federal Register / Vol. 65, No. 129 / Wednesday, July 5, 2000 / Proposed Rules

Map Unit 2: San Diego County,

California. From USGS 1:100,000

quadrangle maps Borrego Valley (1982)

and El Cajon (1979), California. Lands

within T9S, R4E, S1; T9S, R4E, S2SE;

T9S, R4E, S11NE; T9S, R4E, S11SE;

T9S, R4E, S12–S13; T9S, R4E, S14NE;

T9S, R4E, S24; T9S, R4E, S25NW; T9S,

R4E, S25NE; T9S, R4E, S25SE; T9S,

R5E, S1–S36; T9S, R6E, S1–13; T9S,

R6E, S14NW; T9S, R6E, S14NE; T9S,

R6E, S15–S23; T9S, R6E, S24SW; T9S,

R6E, S24SE; T9S, R6E, S25–S36; T9S,

R7E, S1–S18; T9S, R7E, S19NE; T9S,

R7E, S20NW; T9S, R7E, S20NE; T9S,

R7E, S21–S27; T9S, R7E, S28NW; T9S,

R7E, S28NE; T9S, R7E, S28SE; T9S,

R7E, S31NW; T9S, R7E, S31SW; T9S,

R7E, S33–S36; T9S, R8E, S1NE; T9S,

R8E, S1SE; T9S, R8E, S1SW; T9S, R8E,

S2NW; T9S, R8E, S2SW; T9S, R8E,

S2SE; T9S, R8E, S3–S36; T10S, R5E,

S1–S5; T10S, R5E, S8NW; T10S, R5E,

S8NE; T10S, R5E, S9–S28; T10S, R5E,

S33NE; T10S, R5E, S33NW; T10S, R5E,

S33SE; T10S, R5E, S34–S36; T10S, R6E,

S1–S4; T10S, R6E, S5NE; T10S, R6E,

S6–S7; T10S, R6E, S9NE; T10S, R6E,

S10–S14; T10S, R6E, S15NE; T10S, R6E,

S18–S19; T10S, R6E, S23NE; T10S, R6E,

S24NW; T10S, R6E, S24NE; T10S, R6E,

S30NW; T10S, R6E, S30SW; T10S, R7E,

S1–S4; T10S, R7E, S6NW; T10S, R7E,

S6SW; T10S, R7E, S6SE; T10S, R7E, S7;

T10S, R7E, S10NE; T10S, R7E, S10SE;

T10S, R7E, S11–S12; T10S, R7E,

S13NW; T10S, R7E, S13NE; T10S, R7E,

S13SE; T10S, R7E, S14NW; T10S, R7E,

S14NE; T10S, R7E, S18; T10S, R7E,

S19NW; T10S, R7E, S19NE; T10S, R8E,

S1–S18; T10S, R8E, S19NE; T10S, R8E,

S20NE; T10S, R8E, S20NW; T10S, R8E,

S20SE; T10S, R8E, S21–S23; T10S, R8E,

S24NW; T10S, R8E, S24NE; T10S, R8E,

S24SW; T10S, R8E, S26NW; T10S, R8E,

S27NE; T10S, R8E, S28NW; T10S, R8E,

S28NE; T11S, R5E, S1–S4; T11S, R5E,

S5SE; T11S, R5E, S9–S14; T11S, R5E,

S15NE; T11S, R5E, S15NW; T11S, R5E,

S15SE; T11S, R5E, S22NE; T11S, R5E,

S22SE; T11S, R5E, S23–S26; T11S, R5E,

S27NE; T11S, R5E, S34–S36; T11S, R6E,

S5NW; T11S, R6E, S5SW; T11S, R6E,

S6–S7; T11S, R6E, S18NW; T11S, R6E,

S18SW; T11S, R6E, S19; T11S, R6E,

S20NW; T11S, R6E, S20SW; T11S, R6E,

S20SE; T11S, R6E, S28SW; T11S, R6E,

S28SE; T11S, R6E, S29–S33; T11S, R6E,

S34NW; T11S, R6E, S34SW; T11S, R6E,

S34SE; T12S, R5E, S1–S3; T12S, R5E,

S4NE; T12S, R5E, S4SE; T12S, R5E,

S9NE; T12S, R5E, S9SE; T12S, R5E,

S9SW; T12S, R5E, S10–S16; T12S, R5E,

S17SE; T12S, R5E, S20NE; T12S, R5E,

S20SE; T12S, R5E, S20SW; T12S, R5E,

S21–S33; T12S, R5E, S34NE; T12S, R5E,

S34NW; T12S, R5E, S35–S36; T12S,

R6E, S1NW; T12S, R6E, S1SW; T12S,

R6E, S1SE; T12S, R6E, S2–S36; T12S,

R7E, S7–S8; T12S, R7E, S9SW; T12S,

R7E, S13SE; T12S, R7E, S13SW; T12S,

R7E, S14SW; T12S, R7E, S15–S36;

T12S, R8E, S18SE; T12S, R8E, S18SW;

T12S, R8E, S19; T12S, R8E, S20NW;

T12S, R8E, S20SW; T12S, R8E, S20SE;

T12S, R8E, S21SW; T12S, R8E, S21SE;

T12S, R8E, S27SW; T12S, R8E, S28–

S34; T12S, R8E, S35NW; T12S, R8E,

S35SW; T13S, R5E, S1NW; T13S, R5E,

S1NE; T13S, R5E, S1SE; T13S, R5E,

S13SE; T13S, R5E, S13NE; T13S, R5E,

S22SE; T13S, R5E, S23SW; T13S, R5E,

S23SE; T13S, R5E, S24NE; T13S, R5E,

S24SW; T13S, R5E, S24SE; T13S, R5E,

S25–S27; T13S, R5E, S34NW; T13S,

R5E, S34NE; T13S, R5E, S34SE; T13S,

R5E, S35–S36; T13S, R6E, S1–S6; T13S,

R6E, S7NW; T13S, R6E, S7NE; T13S,

R6E, S7SE; T13S, R6E, S8–S36; T13S,

R7E, S1–S36; T13S, R8E, S1–S36; T14S,

R5E, S1–S2; T14S, R5E, S11–S13; T14S,

R5E, S14NW; T14S, R5E, S14NE; T14S,

R5E, S14SE; T14S, R5E, S23NE; T14S,

R5E, S24NE; T14S, R5E, S24NW; T14S,

R6E, S1–S30; T14S, R6E, S31NW; T14S,

R6E, S31NE; T14S, R6E, S31SE; T14S,

R6E, S32–S36; T14S, R7E, S1NW; T14S,

R7E, S1NE; T14S, R7E, S1SE; T14S,

R7E, S2–S9; T14S, R7E, S16NW; T14S,

R7E, S16SE; T14S, R7E, S16SW; T14S,

R7E, S17–S21; T14S, R7E, S22SW;

T14S, R7E, S26SW; T14S, R7E, S27–

S34; T14S, R7E, S35NW; T14S, R7E,

S35SW; T14S, R8E, S1; T14S, R8E,

S2NE; T14S, R8E, S2NW; T14S, R8E,

S2SE; T14S, R8E, S3–S6; T14S, R8E,

S8NW; T14S, R8E, S8NE; T14S, R8E,

S9NW; T14S, R8E, S9NE; T14S, R8E,

S12NE; T15S, R6E, S1–S4; T15S, R6E,

S5NW; T15S, R6E, S5NE; T15S, R6E,

S5SE; T15S, R6E, S9–S15; T15S, R6E,

S16NW; T15S, R6E, S16NE; T15S, R6E,

S22NE; T15S, R6E, S23–S24; T15S, R6E,

S25NE; T15S, R6E, S25SE; T15S, R6E,

S36NE; T15S, R7E, S1SW; T15S, R7E,

S2–S11; T15S, R7E, S12NW; T15S, R7E,

S12SW; T15S, R7E, S12SE; T15S, R7E,

S13–S36; T15S, R8E, S10SE; T15S, R8E,

S11SW; T15S, R8E, S11SE; T15S, R8E,

S12NE; T15S, R8E, S12SW; T15S, R8E,

S12SE; T15S, R8E, S13–S16; T15S, R8E,

S17SE; T15S, R8E, S19–S36; T16S, R7E,

S1–S6; T16S, R7E, S7NE; T16S, R7E,

S8–S16; T16S, R7E, S17NW; T16S, R7E,

S17NE; T16S, R7E, S17SE; T16S, R7E,

S21–S27; T16S, R7E, S28NW; T16S,

R7E, S28NE; T16S, R7E, S28SE; T16S,

R7E, S33NE; T16S, R7E, S34–36; T16S,

R8E, S1–S34; T16S, R8E, S35NW; T16S,

R8E, S35SW; T16S, R8E, S35SE; T16S,

R8E, S36SE; T17S, R7E, S1–S2; T17S,

R7E, S3NE; T17S, R7E, S3NW; T17S,

R7E, S3SE; T17S, R7E, S11–S14; T17S,

R7E, S23NW; T17S, R7E, S23NE; T17S,

R7E, S23SE; T17S, R7E, S24; T17S, R7E,

S25NE; T17S, R8E, S1–S20; T17S, R8E,

S21NW; T17S, R8E, S21NE; T17S, R8E,

S22–S25; T17S, R8E, S26NW; T17S,

R8E, S26NE; T17S, R8E, S26SE; T17S,

R8E, S29NW; T17S, R8E, S30NW; T17S,

R8E, S30NE; T17S, R8E, S36; T18S,

R8E, S1NW; T18S, R8E, S1NE; T18S,

R8E, S1SE. The following lands within

the Valle de San Felipe Land Grant

bounded by UTM zone 11, NAD27

coordinates (X, Y): 547000, 3664000;

548000, 3664000; 548000, 3663000;

552000, 3663000; 552000, 3662000;

551000, 3662000; 551000, 3661000;

547000, 3661000; 547000, 3664000.

Federal Register / Vol. 65, No. 129 / Wednesday, July 5, 2000 / Proposed Rules 41421

41422 Federal Register / Vol. 65, No. 129 / Wednesday, July 5, 2000 / Proposed Rules

Map Unit 3: Imperial County,

California. From USGS 1:100,000

quadrangle maps Borrego Valley (1982),

El Cajon (1979), Salton Sea (1982), and

El Centro (1982), California. Lands

within T9S, R9E, S5SW; T9S, R9E, S6–

S8; T9S, R9E, S9SW; T9S, R9E, S16NW;

T9S, R9E, S16SW; T9S, R9E, S17–S20;

T9S, R9E, S21NW; T9S, R9E, S21SW;

T9S, R9E, S28NW; T9S, R9E, S28SW;

T9S, R9E, S29–S32; T9S, R9E, S33NW;

T9S, R9E, S33SE; T9S, R9E, S33SW;

T10S, R9E, S3NW; T10S, R9E, S3SW;

T10S, R9E, S4–S9; T10S, R9E, S10NW;

T10S, R9E, S10SE; T10S, R9E, S10SW;

T10S, R9E, S14–S18; T10S, R9E, S21NE;

T10S, R9E, S21NW; T10S, R9E, S22NE;

T10S, R9E, S22NW; T13S, R9E, S6SW;

T13S, R9E, S7NW; T13S, R9E, S7SE;

T13S, R9E, S7SW; T13S, R9E, S14SW;

T13S, R9E, S15NW; T13S, R9E, S15SE;

T13S, R9E, S15SW; T13S, R9E, S16–

S23; T13S, R9E, S24SW; T13S, R9E,

S25–S36; T13S, R10E, S29SW; T13S,

R10E, S30–S32; T13S, R10E, S33SW;

T14S, R9E, S1–S17; T14S, R9E, S18NE;

T14S, R9E, S18SE; T14S, R9E, S19NE;

T14S, R9E, S20–S28; T14S, R9E, S29NE;

T14S, R9E, S29NW; T14S, R9E, S29SE;

T14S, R9E, S32–S36; T14S, R10E,

S4NW; T14S, R10E, S4SW; T14S, R10E,

S5–S8; T14S, R10E, S9NW; T14S, R10E,

S9SW; T14S, R10E, S16NW; T14S,

R10E, S17–S19; T14S, R10E, S20NE;

T14S, R10E, S20NW; T14S, R10E,

S30NW; T14S, R10E, S30SW; T14S,

R10E, S31NW; T14S, R10E, S31SW;

T15S, R9E, S1–S5; T15S, R9E, S6NE;

T15S, R9E, S7–S36; T15S, R10E, S5SW;

T15S, R10E, S6–S7; T15S, R10E, S8NW;

T15S, R10E, S19; T15S, R10E, S20SW;

T15S, R10E, S29NW; T15S, R10E,

S29SW; T15S, R10E, S30–S33; T16.5S,

R9.5E, S1NW; T16.5S, R9.5E, S1SE;

T16.5S, R9.5E, S1SW; T16.5S, R9.5E,

S2; T16.5S, R10E, S4SE; T16.5S, R10E,

S4SW; T16.5S, R10E, S5SE; T16.5S,

R10E, S5SW; T16.5S, R10E, S6SE;

T16.5S, R10E, S6SW; T16S, R9E, S1–

S14; T16S, R9E, S15NE; T16S, R9E,

S15NW; T16S, R9E, S15SE; T16S, R9E,

S16NE; T16S, R9E, S16NW; T16S, R9E,

S17NE; T16S, R9E, S17NW; T16S, R9E,

S18NE; T16S, R9E, S19; T16S, R9E,

S28SE; T16S, R9E, S28SW; T16S, R9E,

S30NE; T16S, R9E, S30NW; T16S, R9E,

S30SW; T16S, R9E, S31–S34; T16S,

R9E, S35SW; T16S, R10E, S4–S7; T16S,

R10E, S8NE; T16S, R10E, S8NW; T16S,

R10E, S18NE; T16S, R10E, S18NW;

T17S, R9E, S1–S36; T17S, R10E, S2–

S10; T17S, R10E, S11NW; T17S, R10E,

S11NE; T17S, R10E, S11SW; T17S,

R10E, S13SW; T17S, R10E, S14NW;

T17S, R10E, S14SW; T17S, R10E,

S14SE; T17S, R10E, S15–S23; T17S,

R10E, S24NW; T17S, R10E, S24SW;

T17S, R10E, S25NW; T17S, R10E,

S25SW; T17S, R10E, S26–S35; T17S,

R10E, S36NW; T17S, R10E, S36SW;

T18S, R9E, S1–S6; T18S, R9E, S7NE;

T18S, R9E, S7SE; T18S, R9E, S7NW;

T18S, R9E, S8–S11.

Federal Register / Vol. 65, No. 129 / Wednesday, July 5, 2000 / Proposed Rules 41423

41424 Federal Register / Vol. 65, No. 129 / Wednesday, July 5, 2000 / Proposed Rules

Dated: June 28, 2000.

Donald J. Barry,

Assistant Secretary for Fish and Wildlife and

Parks.

[FR Doc. 00–16925 Filed 7–3–00; 8:45 am]

BILLING CODE 4310–55–C

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 660

[Docket No. 000622191–0191–01; I.D.

041700D]

RIN 0648–AO35

Fisheries off West Coast States and in

the Western Pacific; Pelagics

Fisheries; Measures To Reduce the

Incidental Catch of Seabirds in the

Hawaii Pelagic Longline Fishery

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Proposed rule, request for

comments.

SUMMARY: NMFS proposes a rule under

the Fishery Management Plan for the

Pelagic Fisheries of the Western Pacific

Region (FMP) that would require

operators of vessels registered for use

under Hawaii pelagic longline limited

access permits to use two or more of six

specific bird mitigation techniques

when fishing with pelagic longline gear

north of 25° N. lat.; annually attend a

protected species workshop conducted

by NMFS; and release all hooked or

entangled sea birds in a manner that

maximizes their post-release survival.

This proposed rule would reduce

fishery impacts on black-footed and

Laysan albatrosses that are accidentally

hooked or entangled and killed by

Hawaii pelagic longliners during the

setting and hauling of longline gear.

This proposed rule would also reduce

the potential for interactions between

pelagic longline fishing vessels and

endangered short-tailed albatrosses,

which are known to occasionally visit

the Northwestern Hawaiian Islands.

DATES: Comments on this proposed rule

must be received at the appropriate

address or fax number, (see ADDRESSES)

no later than 5 p.m., Hawaiian standard

time, on August 21, 2000.

ADDRESSES: Written comments on this

proposed rule must be sent to Kathy

Cousins, NMFS Pacific Islands Area

Office (PIAO), 1601 Kapiolani Blvd.

Suite 1101, Honolulu HI 96822; or sent

via facsimile (fax) to 808–973–2941.

Comments will not be accepted if

submitted via e-mail or Internet. Copies

of a background document on the

proposed regulatory action, including

an environmental assessment (EA) and

initial regulatory flexibility analysis

(IRFA), are available from Kitty

Simonds, Executive Director, Western

Pacific Fishery Management Council

(Council), 1164 Bishop St., Suite 1400,

Honolulu, HI 96813.

FOR FURTHER INFORMATION CONTACT:

Kathy Cousins, 808–973–2937, fax 808–

973–2941, e-mail

kathy.cousins@noaa.gov.

SUPPLEMENTARY INFORMATION: The

Hawaii-based domestic pelagic longline

fishery operates under a limited access

regime with a maximum of 164

transferable permits. The number of

active vessels in the fishery has ranged

from 110 to 120; in 1998, there were 114

active vessels. Data on Hawaii-based

pelagic longline interactions with

seabirds have been collected by NMFS

observers since 1994. Estimated annual

black-footed albatross mortalities caused

by pelagic longline gear range from a

1996 low of 1,568, to a 1994 high of

1,994; there were 1,963 mortalities

estimated to have taken place in 1998.

Laysan albatross estimated annual

mortalities caused by pelagic longline

gear range from a low in 1996 of 1,047

to a high in 1994 of 1,828, with 1,479

mortalities estimated to have occurred

in 1998. There have been no observed

fishery interactions with short-tailed

albatrosses, although two short-tail

albatrosses have been sighted near

Hawaii pelagic longline operations at

sea on separate occasions. In response to

concerns expressed by the U.S. Fish and

Wildlife Service (FWS), researchers, and

conservationists about these fisheryrelated impacts on albatross

populations, the Council has proposed

regulatory changes under FMP

framework procedures. These proposed

changes were developed by the

Council’s Pelagics Plan Team, Advisory

Panel, and Scientific and Statistical

Committee. The Council discussed

various alternative sea bird mitigation

measures at its June 1999 meeting and

again at its October 1999 meeting, when

final action was taken to recommend to

NMFS the measures set forth in this

proposed rule.

The first proposed measure would

require operators of vessels registered

for use with Hawaii pelagic longline

limited access permits to employ 2 or

more of 6 specific bird take mitigation

techniques when longlining north of 25°

N. lat. Individual pelagic longline vessel

operators would choose which 2 or

more of the 6 mitigation methods to

employ based on their vessel operations

and at-sea conditions. The six

mitigation methods approved by the

Council are: (1) discharge offal

strategically from the side of the vessel

opposite the gear while the vessel is

setting or hauling pelagic longline gear;

(2) begin to set pelagic longline gear at

least 1 hour after sunset and complete

the setting operation at least 1 hour

before sunrise using only such lighting

necessary for crew safety; (3) use only

completely thawed bait which has been

dyed blue; (4) tow a buoy or tori (bird)

line, meeting the specifications

proposed under 50 CFR 660.33(b)(4)

while the longline gear is being set and

hauled; (5) attach weights of at least 45

grams to branch lines within 1 meter of

each hook; and, (6) set the line using a

line setting machine with weights of at

least 45 grams attached to branch lines

within 1 meter of each hook. These

techniques have been tested

individually and were found to mitigate

71 to 98 percent of seabird interactions

as compared to normal Hawaii pelagic

longline operations.

Two geographical management

options were investigated and the

management area (north of 25° N. lat.)

was selected by the Council because it

encompasses the area with 95 percent of

the fleet’s annual average incidental

seabird catch and impacts 33 percent of

the average annual fleet effort. The

second management area option (north

of 23° N. lat.) was rejected because it

would impact an additional 11 percent

of fishing effort without significantly

reducing incidental seabird catch.

A no action alternative was rejected

because it would not meet the seabird

conservation objective. A second

rejected alternative would have required

similar mitigation techniques, however,

the choice of which 2 seabird take

mitigation measures to use would have

been made by the Council for all vessels

fishing north of 25° N. lat. This

alternative would have required all

pelagic longline fishing vessels to use

seabird mitigation methods without

regard to particular vessel operating

patterns and at-sea conditions. This

rejected alternative would likely have

resulted in unduly burdensome impacts

on fishing operations. A third rejected

alternative would have prohibited

longline fishing within the exclusive

economic zone (EEZ) around Hawaii

north of 23° N. lat. This alternative was

rejected because it would have

potentially reduced seabird interactions

by a maximum of only 62 percent.

The second proposed measure would

require all owners and operators of

longline vessels holding Hawaii

longline limited access permits to attend