58340 Federal Register / Vol. 71, No. 191 / Tuesday, October 3, 2006 / Proposed Rules 

representatives of the United States 

Government. 

(End of clause) 

[FR Doc. 06–8413 Filed 10–2–06; 8:45 am] 

BILLING CODE 6820–EP–S 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AU77 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for Ceanothus ophiochilus 

(Vail Lake ceanothus) and 

Fremontodendron mexicanum 

(Mexican flannelbush) 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

designate critical habitat for Ceanothus 

ophiochilus (Vail Lake ceanothus) and 

Fremontodendron mexicanum (Mexican 

flannelbush) pursuant to the 

Endangered Species Act of 1973, as 

amended (Act). In total, approximately 

644 acres (ac) (262 hectares (ha)) are 

proposed for the designation of critical 

habitat for these two species. 

Approximately 283 ac (115 ha) of land 

in Riverside County, California, are 

being proposed as critical habitat for C. 

ophiochilus, and approximately 361 ac 

(147 ha) of land in San Diego County, 

California, are being proposed as critical 

habitat for F. mexicanum. 

DATES: We will accept comments from 

all interested parties until December 4, 

2006. We must receive requests for 

public hearings, in writing, at one of the 

addresses shown in the ADDRESSES

section by November 17, 2006. 

ADDRESSES: If you wish to comment on 

the proposed rule, you may submit your 

written comments and information by 

any of the following methods: 

(1) E-mail: 

fw8cfwocomments@fws.gov. Include 

‘‘RIN 1018–AU77’’ in the subject line. 

Please see the Public Comments 

Solicited section under SUPPLEMENTARY

INFORMATION. 

(2) Fax: 760/431–9624. 

(3) U.S. mail or hand-delivery: Jim 

Bartel, Field Supervisor, Carlsbad Fish 

and Wildlife Office, 6010 Hidden Valley 

Road, Carlsbad, CA 92011. 

(4) Federal eRulemaking Portal: 

http://www.regulations.gov. Follow the 

instructions for submitting comments. 

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 at the above address. 

FOR FURTHER INFORMATION CONTACT: Jim 

Bartel, Field Supervisor, Carlsbad Fish 

and Wildlife Office, telephone, 760/ 

431–9440. 

SUPPLEMENTARY INFORMATION: 

Public Comments Solicited 

We intend that any final action 

resulting from this proposal will be as 

accurate and as effective as possible. 

Therefore, comments or suggestions 

from the public, other concerned 

governmental agencies, the scientific 

community, industry, or any other 

interested party concerning this 

proposed rule are hereby solicited. 

Comments particularly are sought 

concerning: 

(1) The reasons any habitat should or 

should not be determined to be critical 

habitat as provided by section 4 of the 

Act (16 U.S.C. 1531 et seq.), including 

whether it is prudent to designate 

critical habitat; 

(2) Specific information on the 

amount and distribution of Ceanothus 

ophiochilus or Fremontodendron 

mexicanum habitat, what areas should 

be included in the designations that 

were occupied at the time of listing that 

contain the features that are essential for 

the conservation of the species, and 

what areas that were not occupied at the 

listing are essential to the conservation 

of the species and why; 

(3) Land use designations and current 

or planned activities in the mapped 

critical habitat subunits and their 

possible effects on proposed critical 

habitat; 

(4) We are proposing to exclude nonFederal lands targeted for conservation 

within the Western Riverside County 

MSHCP from the final designation of 

critical habitat for Ceanothus 

ophiochilus under section 4(b)(2) of the 

Act (see Exclusions Under Section 

4(b)(2) of the Act for details on the 

Western Riverside MSHCP). Please 

provide information concerning 

whether the benefits of exclusion of any 

of these specific areas outweigh the 

benefits of their inclusion under section 

4(b)(2) of the Act. If the Secretary 

determines the benefits of including 

these lands outweigh the benefits of 

excluding them, they will not be 

excluded from critical habitat; 

(5) The appropriateness of excluding 

lands that contain Fremontodendron 

mexicanum occurrences within areas of 

the San Diego MSCP and areas of the 

BLM Otay Mountain Wilderness 

covered by the 1994 multiple agency 

MOU (MOU 1994) from the final 

designation of critical habitat. 

Fremontodendron mexicanum is not 

covered by the MSCP; however, other 

species that co-occur with F. 

mexicanum are covered by the MSCP. 

Please provide comments whether the 

protection and management of the 

habitat for these co-occurring species is 

adequate to justify the exclusion of 

these lands under section 4(b)(2) of the 

Act. Also, we are seeking any 

information on the benefits of including 

or excluding these lands from the 

critical habitat designation; 

(6) The appropriateness of including 

lands in the Agua Tibia Mountains 

owned by the U.S. Forest Service and 

managed under its Land Management 

Plans for the Four Southern California 

National Forests from the final 

designation of critical habitat for 

Ceanothus ophiochilus. Please provide 

comments on how implementation of 

the management plan(s) in the Agua 

Tibia Mountains will or will not provide 

for conservation for C. ophiochilus. Also 

provide information on any 

minimization measures or monitoring 

plans for C. ophiochilus that will help 

insure that the occurrences of C. 

ophiochilus remain healthy and viable 

in the Cleveland National Forest. 

Finally, provide comments on the 

benefits of including or excluding these 

lands from the critical habitat 

designation; 

(7) Any foreseeable economic, 

national security, or other potential 

impacts resulting from the proposed 

designation and, in particular, any 

impacts on small entities; 

(8) Whether our approach to 

designating critical habitat could be 

improved or modified in any way to 

provide for greater public participation 

and understanding, or to assist us in 

accommodating public concerns and 

comments; 

(9) Information concerning pollinator 

species for Ceanothus ophiochilus or 

Fremontodendron mexicanum and 

whether sufficient information exists to 

determine if such a biological feature 

should be considered a primary 

constituent element for either of these 

species (please see ‘‘Primary Constituent 

Elements’’ section of this proposed rule 

for a detailed discussion); 

(10) Whether any areas not currently 

known to be occupied by either species, 

but essential to the conservation of 

either species, should be included in the 

proposed designation; and 

(11) Whether the benefit of exclusion 

of any particular area outweighs the 


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Federal Register / Vol. 71, No. 191 / Tuesday, October 3, 2006 / Proposed Rules 58341 

benefits of inclusion under section 

4(b)(2) of the Act. 

If you wish to comment, you may 

submit your comments and materials 

concerning this proposal by any one of 

several methods (see ADDRESSES

section). Please submit Internet 

comments to 

fw8cfwocomments@fws.gov. Please also 

include ‘‘Attn: RIN 1918–AU77’’ in your 

e-mail subject line and your name and 

return address in the body of your 

message. If you do not receive a 

confirmation from the system that we 

have received your Internet message, 

contact us directly by calling our 

Carlsbad Fish and Wildlife Office at 

phone number (760) 431–9440. Please 

note that the e-mail address 

fw8cfwocomments@fws.gov will be 

closed at the termination of the public 

comment period. 

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 names and/or home 

addresses, etc. but if you wish us to 

consider withholding this information 

you must state this prominently at the 

beginning of your comments. In 

addition, you must present rationale for 

withholding this information. This 

rationale must demonstrate that 

disclosure would constitute a clearly 

unwarranted invasion of privacy. 

Unsupported assertions will not meet 

this burden. In the absence of 

exceptional, documentable 

circumstances, this information will be 

released. We will always make 

submissions from organizations or 

businesses, and from individuals 

identifying themselves as 

representatives of or officials of 

organizations or businesses, available 

for public inspection in their entirety. 

Comments and materials received will 

be available for public inspection, by 

appointment, during normal business 

hours at the Carlsbad Fish and Wildlife 

Office (see ADDRESSES section). 

Role of Critical Habitat in Actual 

Practice of Administering and 

Implementing the Act 

Attention to and protection of habitat 

is paramount to successful conservation 

actions. The role that designation of 

critical habitat plays in protecting 

habitat of listed species, however, is 

often misunderstood. As discussed in 

more detail below in the discussion of 

exclusions under section 4(b)(2) of the 

Act, there are significant limitations on 

the regulatory effect of designation 

under section 7(a)(2) of the Act. In brief, 

(1) Designation provides additional 

protection to habitat only where there is 

a federal nexus; (2) the protection is 

relevant only when, in the absence of 

designation, destruction or adverse 

modification of the critical habitat 

would in fact take place (in other words, 

other statutory or regulatory protections, 

policies, or other factors relevant to 

agency decision-making would not 

prevent the destruction or adverse 

modification); and (3) designation of 

critical habitat triggers the prohibition 

of destruction or adverse modification 

of that habitat, but it does not require 

specific actions to restore or improve 

habitat. 

Currently, 475 species, or 36 percent 

of the 1,310 listed species in the United 

States under the jurisdiction of the 

Service, have designated critical habitat. 

We address the habitat needs of all 

1,310 listed species through 

conservation mechanisms such as 

listing, section 7 consultations, the 

Section 4 recovery planning process, the 

Section 9 protective prohibitions of 

unauthorized take, Section 6 funding to 

the States, the Section 10 incidental take 

permit process, and cooperative, 

nonregulatory efforts with private 

landowners. The Service believes that it 

is these measures that may make the 

difference between extinction and 

survival for many species. 

In considering exclusions of areas 

proposed for designation, we evaluated 

the benefits of designation in light of 

Gifford Pinchot Task Force v. U.S. Fish 

and Wildlife Service, 378 F. 3d 1059 

(9th Cir 2004) (hereinafter Gifford 

Pinchot). In that case, the Ninth Circuit 

invalidated the Service’s regulation 

defining ‘‘destruction or adverse 

modification of critical habitat.’’ In 

response, on December 9, 2004, the 

Director issued guidance to be 

considered in making section 7 adverse 

modification determinations. This 

proposed critical habitat designation 

does not use the invalidated regulation 

in our consideration of the benefits of 

including areas in this final designation. 

The Service will carefully manage 

future consultations that analyze 

impacts to designated critical habitat, 

particularly those that appear to be 

resulting in an adverse modification 

determination. Such consultations will 

be reviewed by the Regional Office prior 

to finalizing to ensure that an adequate 

analysis has been conducted that is 

informed by the Director’s guidance. 

On the other hand, to the extent that 

designation of critical habitat provides 

protection, that protection can come at 

significant social and economic cost. In 

addition, the mere administrative 

process of designation of critical habitat 

is expensive, time-consuming, and 

controversial. The current statutory 

framework of critical habitat, combined 

with past judicial interpretations of the 

statute, make critical habitat the subject 

of excessive litigation. As a result, 

critical habitat designations are driven 

by litigation and courts rather than 

biology, and made at a time and under 

a time frame that limits our ability to 

obtain and evaluate the scientific and 

other information required to make the 

designation most meaningful. 

In light of these circumstances, the 

Service believes that additional agency 

discretion would allow our focus to 

return to those actions that provide the 

greatest benefit to the species most in 

need of protection. 

Procedural and Resource Difficulties in 

Designating Critical Habitat 

We have been inundated with 

lawsuits for our failure to designate 

critical habitat, and we face a growing 

number of lawsuits challenging critical 

habitat determinations once they are 

made. These lawsuits have subjected the 

Service to an ever-increasing series of 

court orders and court-approved 

settlement agreements, compliance with 

which now consumes nearly the entire 

listing program budget. This leaves the 

Service with little ability to prioritize its 

activities to direct scarce listing 

resources to the listing program actions 

with the most biologically urgent 

species conservation needs. 

The consequence of the critical 

habitat litigation activity is that limited 

listing funds are used to defend active 

lawsuits, to respond to Notices of Intent 

(NOIs) to sue relative to critical habitat, 

and to comply with the growing number 

of adverse court orders. As a result, 

listing petition responses, the Service’s 

own proposals to list critically 

imperiled species, and final listing 

determinations on existing proposals are 

all significantly delayed. 

The accelerated schedules of courtordered designations have left the 

Service with limited ability to provide 

for public participation or to ensure a 

defect-free rulemaking process before 

making decisions on listing and critical 

habitat proposals, due to the risks 

associated with noncompliance with 

judicially imposed deadlines. This in 

turn fosters a second round of litigation 

in which those who fear adverse 

impacts from critical habitat 

designations challenge those 

designations. The cycle of litigation 

appears endless, and is very expensive, 

thus diverting resources from 

conservation actions that may provide 

relatively more benefit to imperiled 

species. 


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58342 Federal Register / Vol. 71, No. 191 / Tuesday, October 3, 2006 / Proposed Rules 

The costs resulting from the 

designation include legal costs, the cost 

of preparation and publication of the 

designation, the analysis of the 

economic effects and the cost of 

requesting and responding to public 

comment, and in some cases the costs 

of compliance with the National 

Environmental Policy Act (NEPA). 

These costs, which are not required for 

many other conservation actions, 

directly reduce the funds available for 

direct and tangible conservation actions. 

Background 

It is our intent to discuss only those 

topics directly relevant to the 

designation of critical habitat in this 

proposed rule. For more information on 

Ceanothus ophiochilus and 

Fremontodendron mexicanum, refer to 

the final listing rule published in the 

Federal Register on October 13, 1998 

(63 FR 54956). 

Species Descriptions and Life History 

As discussed in the listing rule, 

Ceanothus ophiochilus is a 4–5 feet (ft) 

(1.2–1.5 meters (m)) tall shrub in the 

buckthorn family (Rhamnaceae) 

described by Steve Boyd, Timothy Ross, 

and Laurel Arnseth based on a 

collection made by the authors in March 

1989 west of Vail Lake in Riverside 

County, California (Boyd et al. 1991). 

Fremontodendron mexicanum is a small 

tree or shrub 5–19 ft (1.5–6 m) tall in the 

cacao family (Sterculiaceae) first 

described by Anstruther Davidson 

(1917) based on a collection sent to him 

by Kate Sessions. 

Ecology and Habitat 

Ceanothus ophiochilus occurs in 

restricted, localized occurrences in the 

interior foothills of Riverside County, 

California, and Fremontodendron 

mexicanum occurs in restricted and 

localized occurrences from the foothills 

of San Diego County and northwestern 

Baja California, Mexico. Ceanothus 

ophiochilus is found in chamisechaparral, often in association with 

specific soil types (Fross and Wilken 

2006, p. 216). Fremontodendron 

mexicanum is known from ephemeral 

drainages and associated slopes with 

closed-cone coniferous forest dominated 

by Tecate cypress and chaparral. 

Fremontodendron mexicanum is found 

on the San Miguel Exchequer soil series; 

however, the distribution of this soil 

series covers a much larger geographic 

area than the known distribution of this 

species in the United States. 

Chaparral, like other Mediterranean 

shrubland communities, is adapted to 

intervals between wildfires of 

approximately 20 to 50 years (Keeley 

1986). However, chaparral species have 

differing life history modes and 

characteristics (Keeley 1986, p. 95). 

Ceanothus ophiochilus does not 

resprout after fire but instead recovers 

by post-fire seed germination from seeds 

stored in the soil. This ‘‘obligate 

seeder,’’ like other species of 

Arctostaphylos (manzanita) and 

Ceanothus, require[s] 5–25 years for 

seed crops sufficient to replenish the 

seed pool in the soil (Keeley 1986, p. 

99). Citing Arnold et al. 1951 and Zedler 

et al. 1983, Keeley (1986, p. 99) stated 

that if frequent fires occur, obligate 

seeders may not produce enough seed, 

then these obligate seeders may be 

eliminated from chaparral. Moreover, 

sustained fire prevention can result in 

senescent stands of C. ophiochilus that 

may not survive the eventual and 

unpredictable fires to reproduce 

vegetatively (Boyd et. al. 1991, pp. 30–

39). 

On the other hand, Fremontodendron 

mexicanum is a ‘‘facultative resprouter’’

because it recovers after fire by seed 

germination and by resprouting from its 

roots. According to Keeley (1986, pp. 

104–105), facultative resprouters are 

‘‘clearly more resilient to frequent fire 

[than obligate seeders] and they are 

potentially more resilient to long firefree periods [like ‘‘obligate resprouters’’] 

because of their ability to replace their 

canopy with new basal sprouts in the 

absence of fire.’’

Distribution 

Both Ceanothus ophiochilus and 

Fremontodendron mexicanum have 

extremely limited distributions. The 

listing rule (63 FR 54956) describes only 

three known occurrences of C. 

ophiochilus. These occurrences are 

known from two distinct places; one is 

west of Vail Lake and the other two are 

south of Vail Lake in the Agua Tibia 

Wilderness of the Cleveland National 

Forest in southwestern Riverside 

County. No new occurrences of this 

species have been found since the time 

it was listed. Fremontodendron 

mexicanum is only found growing 

naturally in southern San Diego County 

on Otay Mountain and in northwestern 

Baja California, Mexico. As stated in the 

listing rule, F. mexicanum is used in 

landscaping as a drought-tolerant plant, 

and this has led to a number of 

collection records that are far outside 

this species’ natural range. At the time 

of listing, fewer than 10 historical 

locations had been reported for F. 

mexicanum in the United States. After 

researching the historical locations for 

the publication of the listing rule, it was 

determined that only one population of 

F. mexicanum was both extant and of 

native origin. 

In early 2006, a previously 

undiscovered occurrence of 

Fremontodendron mexicanum was 

found in Little Cedar Canyon on Otay 

Mountain by Service biologists on land 

managed by the Bureau of Land 

Management. Little Cedar Canyon is 

located just to the west of Cedar 

Canyon, where the only other natural 

U.S. occurrence of F. mexicanum is 

found. This new occurrence in Little 

Cedar Canyon is spread out over a 1- 

mile (1.6 kilometers) stretch of the 

canyon bottom. Twenty-six plants were 

documented in this canyon; however, 

the entire canyon was not surveyed and 

additional plants may occur further up 

the canyon or up one of the side 

canyons. With regards to occurrences in 

Baja California, Mexico, we have no 

current information on the population 

in Arroyo Seco; however, the 

occurrence in Arroyo Hediondo was 

visited in early 2006 (Snapp-Cook 

2006). During that survey effort, four 

plants were found and a dam had been 

built upstream about 1 mile (1.6 

kilometers) from the location where the 

plants were found that may affect the 

hydrology of the stream (Snapp-Cook 

2006). 

Previous Federal Actions 

Ceanothus ophiochilus and 

Fremontodendron mexicanum were 

federally listed as endangered and 

threatened, respectively, on October 13, 

1998 (63 FR 54956). Ceanothus 

ophiochilus and F. mexicanum are 

listed as endangered and rare, 

respectively, by the State of California 

(Fross and Wilken 2006, p. 85). At the 

time these plants were federally listed, 

the Service evaluated the benefits of 

designating critical habitat to the 

detrimental effects (threats) of increased 

collection and vandalism and the 

potential for private landowner 

misunderstandings about the effects of 

critical habitat designation on private 

lands. The Service found, based on 

these factors, that designation of critical 

habitat for each species, C. ophiochilus 

and F. mexicanum, was not prudent. On 

August 10, 2004, the Center for 

Biological Diversity and California 

Native Plant Society challenged our 

failure to designate critical habitat for 

these two species as well as three other 

plant species (Center for Biological 

Diversity, et al. v. Gale Norton, 

Secretary of the Department of the 

Interior, et al., C–04–3240 JL, N. D. Cal.). 

The Service agreed to withdraw our 

previous not prudent finding and 

publish a proposed determination of 

critical habitat on or before September 


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20, 2006. If prudent and a proposed 

designation is promulgated, then a final 

designation is due by September 20, 

2007. Neither of these species currently 

has a completed recovery plan. We are 

hereby withdrawing our previous not 

prudent determination of critical habitat 

for C. ophiochilus and F. mexicanum. 

We have further re-evaluated prudency 

of designating critical habitat for these 

two species and reconsidered our 

evaluation of the threats posed by 

vandalism and overcollection in our 

previous prudency determination. We 

currently have no credible information 

indicating that the designation of 

critical habitat would be expected to 

increase the human threat from 

vandalism or overcollection. Therefore, 

we have now determined critical habitat 

to be prudent. As a result, we are now 

proposing to designate critical habitat 

for C. ophiochilus and F. mexicanum. 

Critical Habitat 

Critical habitat is defined in section 3 

of the Act as (i) The specific areas 

within the geographical 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 geographical area occupied 

by a species at the time it is listed, upon 

a determination that such areas are 

essential for the conservation of the 

species. Conservation, as defined under 

section 3 of the Act, means to use and 

the use of all methods and procedures 

which are necessary to bring any 

endangered species or threatened 

species to the point at which the 

measures provided under the Act are no 

longer necessary. Such methods and 

procedures include, but are not limited 

to, all activities associated with 

scientific resources management, such 

as research, census, law enforcement, 

habitat acquisition and maintenance, 

propagation, live trapping, and 

transplantation, and, in the 

extraordinary case where population 

pressures within a given ecosystem 

cannot be otherwise relieved, may 

include regulated taking. 

Critical habitat receives protection 

under section 7 of the Act through the 

prohibition against destruction or 

adverse modification of critical habitat 

with regard to actions carried out, 

funded, or authorized by a Federal 

agency. Section 7 requires consultation 

on Federal actions that are likely to 

result in the destruction or adverse 

modification of critical habitat. The 

designation of critical habitat does not 

affect land ownership or establish a 

refuge, wilderness, reserve, preserve, or 

other conservation area. Such 

designation does not allow government 

or public access to private lands. 

Section 7 is a purely protective measure 

and does not require implementation of 

restoration, recovery, or enhancement 

measures. 

To be included in a critical habitat 

designation, the habitat within the area 

occupied by the species must first have 

features that are essential to the 

conservation of the species. Critical 

habitat designations identify, to the 

extent known using the best scientific 

data available, habitat areas that provide 

essential life cycle needs of the species 

(i.e., areas on which are found the 

primary constituent elements, as 

defined at 50 CFR 424.12(b)). 

Habitat occupied at the time of listing 

may be included in critical habitat only 

if the essential features thereon may 

require special management 

considerations or protection. Thus, we 

do not include areas where existing 

management is sufficient to conserve 

the species. (As discussed below, such 

areas may also be excluded from critical 

habitat pursuant to section 4(b)(2).) In 

addition, when the best available 

scientific data do not demonstrate that 

the conservation needs of the species 

require additional areas, we will not 

designate critical habitat in areas 

outside the geographical area occupied 

by the species at the time of listing. An 

area currently occupied by the species 

but not known to be occupied at the 

time of listing will likely, but not 

always, be essential to the conservation 

of the species and, therefore, typically 

included in the critical habitat 

designation. 

The Service’s Policy on Information 

Standards Under the Endangered 

Species Act, published in the Federal 

Register on July 1, 1994 (59 FR 34271), 

along with Section 515 of the Treasury 

and General Government 

Appropriations Act for Fiscal Year 2001 

(Pub. L. 106–554; H.R. 5658) and the 

associated Information Quality 

Guidelines issued by the Service, 

provide criteria, establish procedures, 

and provide guidance to ensure that 

decisions made by the Service represent 

the best scientific data available. They 

require Service biologists to the extent 

consistent with the Act and with the use 

of the best scientific data available, to 

use primary and original sources of 

information as the basis for 

recommendations to designate critical 

habitat. When determining which areas 

are critical habitat, a primary source of 

information is generally the listing 

package for the species. Additional 

information sources include the 

recovery plan for the species, articles in 

peer-reviewed journals, conservation 

plans developed by States and counties, 

scientific status surveys and studies, 

biological assessments, or other 

unpublished materials and expert 

opinion or personal knowledge. All 

information is used in accordance with 

the provisions of Section 515 of the 

Treasury and General Government 

Appropriations Act for Fiscal Year 2001 

(Pub. L. 106–554; H.R. 5658) and the 

associated Information Quality 

Guidelines issued by the Service. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific data available. Habitat 

is often dynamic, and species may move 

from one area to another over time. 

Furthermore, we recognize that 

designation of critical habitat may not 

include all of the habitat areas that may 

eventually be determined to be 

necessary for the recovery of the 

species. For these reasons, critical 

habitat designations do not signal that 

habitat outside the designation is 

unimportant or may not be required for 

recovery. 

Areas that support occurrences, but 

are outside the critical habitat 

designation, will continue to be subject 

to conservation actions implemented 

under section 7(a)(1) of the Act and to 

the regulatory protections afforded by 

the section 7(a)(2) jeopardy standard, as 

determined on the basis of the best 

available information at the time of the 

action. Federally funded or permitted 

projects affecting listed species outside 

their designated critical habitat areas 

may still result in jeopardy findings in 

some cases. Similarly, critical habitat 

designations made on the basis of the 

best available information at the time of 

designation will not control the 

direction and substance of future 

recovery plans, habitat conservation 

plans, or other species conservation 

planning efforts if new information 

available to these planning efforts calls 

for a different outcome. 

Methods 

As required by section 4(b)(2) of the 

Act, we use the best scientific data 

available in determining areas that 

contain the features that are essential to 

the conservation of Ceanothus 

ophiochilus and Fremontodendron 

mexicanum. This includes information 

from the proposed listing rule (October 

2, 1995, 60 FR 51433) and final listing 

rule (63 FR 54956), data from research 

and survey observations published in 

peer-reviewed articles, site visits and 

unpublished survey data, regional 

Geographic Information System (GIS) 


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layers including soil, vegetation and 

species coverages from both San Diego 

and Riverside Counties, and data 

compiled in the California Natural 

Diversity Database (CNDDB). We have 

also reviewed available information that 

pertains to the habitat requirements of 

these species. We are not proposing any 

areas outside the geographical area 

occupied by the species at the time of 

listing except for Little Cedar Canyon, 

which contains F. mexicanum. 

For Ceanothus ophiochilus, the 

primary informational sources used for 

this proposal are (1) CNDDB (2005 and 

2006); (2) Boyd et. al. (1991); (3) Boyd 

and Banks (1995); (4) herbarium records 

from San Diego Natural History 

Museum, University of California at 

Berkeley, University of California at 

Riverside, and Rancho Santa Ana 

Botanical Garden; and (5) site visits by 

Service biologists to the known 

occurrences of Ceanothus ophiochilus 

in the Agua Tibia Wilderness of the 

Cleveland National Forest in early 2006. 

Additional information was provided by 

the Cleveland National Forest of the 

U.S. Forest Service (USFS), which was 

reviewed for development of this 

proposed rule. 

For Fremontodendron mexicanum, 

the primary informational sources used 

for mapping the Fremontodendron 

mexicanum proposed critical habitat are 

the following: (1) CNDDB (2005 and 

2006); (2) Kelman (1983, 1991); (3) 

herbarium records from San Diego 

Natural History Museum, University of 

California at Berkeley, University of 

California at Riverside, and Rancho 

Santa Ana Botanical Garden; and (4) site 

visits conducted by Service biologists in 

late 2005 and early 2006. The following 

informational sources were also used in 

the preparation of this rule: (1) The San 

Diego Project Office/Palm Springs—

South Coast Field Office of the U.S. 

Bureau of Land Management (BLM); (2) 

the County of San Diego, MSCP 

Division; (3) the Botany Department of 

San Diego Natural History Museum; and 

(4) site visits by Service biologists. 

Service biologists conducted site visits 

to Cedar Canyon (CNDDB element 

occurrence #1, #13, #16), Little Cedar 

Canyon, and one unnamed canyon on 

the west side of Otay Mountain (CNDDB 

element occurrence #7) in late 2005 and 

early 2006 with the goal of relocating 

presumed extirpated historical 

occurrences of F. mexicanum. Service 

biologists also surveyed Horsethief 

Canyon north of Barret Lake in early 

2006 to investigate a collection of F. 

mexicanum made in 1999 (CNDDB 

element occurrence #17). Service 

biologists were unable to relocate any of 

the historical sites outside of the known 

occurrence in Cedar Canyon; however, 

Service biologists did locate a 

previously undiscovered occurrence of 

F. mexicanum in Little Cedar Canyon 

during these site visits. In the site visit 

to the occurrences in Cedar Canyon and 

Little Cedar Canyon, the species was 

found growing on the terraces adjacent 

to Cedar Creek and on the slopes 

associated with the stream and terraces. 

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 consider 

those physical and biological features, 

or primary constituent elements (PCEs), 

that are essential to the conservation of 

the species, and within areas occupied 

by the species at the time of listing, that 

may require special management 

considerations or protection. 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 (or development) of 

offspring; and habitats that are protected 

from disturbance or are representative of 

the historic geographical and ecological 

distributions of a species. 

Ceanothus ophiochilus 

The specific primary constituent 

elements required for Ceanothus 

ophiochilus are derived from the 

biological and physical needs of the 

species as described in the final listing 

rule (63 FR 54956), as well as 

information contained in this proposed 

rule. 

Space for Growth and Reproduction 

Ceanothus ophiochilus is restricted to 

ridgetops and north- to northeast-facing 

slopes in chamise chaparral (PCE #1). It 

occurs on soils formed from 

metavolcanic and ultra-basic parent 

materials or deeply weathered gabbro, 

all of which are phosphorus deficient 

and thus considered to be nutrient-poor 

(PCE #2) (Boyd et al. 1991). These soils 

are similar to serpentine soils, which are 

well known for the high number of 

associated rare and endemic plants 

(Kruckeburg 1984). The high number of 

rare and endemic plants that grow on 

nutrient-poor soils, sometimes termed 

as harsh soils, is due to the difficulty 

that common plants have with growing 

in these conditions. In turn, when 

plants become established on such soils, 

they remain genetically isolated from 

close relatives that are not able to thrive 

on the specialized soils. In this way, 

these nutrient-poor soils may help the 

species maintain reproductive isolation 

(Boyd et al. 1991). This is important 

because C. ophiochilus appears to 

hybridize with the locally common C. 

crassifolius in places where the two 

species come in close proximity (Boyd 

et al. 1991). Hybrids are generally found 

on the margins of C. ophiochilus 

occurrences, where the soil changes 

from the harsh metavolcanic soil that C. 

ophiochilus is typically found on to the 

milder surrounding soil that supports 

species such as C. crassifolius (Boyd et 

al. 1991). Because hybridization is a 

common natural phenomenon among 

the species of Ceanothus (Schmidt 1993; 

Fross and Wilken 2006, pp. 131–149), 

these metavolcanic soils are not only 

important for growth and reproduction 

of C. ophiochilus, but also for space and 

separation from other Ceanothus 

species. 

Soils where the plant is found in the 

Agua Tibia Wilderness are mapped as 

Ramona, Cienaba, and Vista series 

(USDA 1973, pp 38–40, 70–71, 82–83), 

but appear to be Las Posas series based 

on field review and soil samples (USFS 

1998a). Soils where the plant is found 

at Vail Lake are mapped as Cajalco 

series (USDA 1971, p. 21). 

Ceanothus ophiochilus is found in 

chamise chaparral or mixed chamiseceanothus-manzanita chaparral at 

elevations of 2,000–3,000 ft (666 to 

1,000 m) (California Department of Fish 

and Game 2000, CNF occurrence record 

forms) with the following associated 

species: Adenostoma fasciculatum, A. 

sparsifolium, Quercus berberidifolia, C. 

crassifolius, Arctostaphylos spp., Salvia 

clevelandii, and Eriodictyon 

crassifolium (PCE #3) (Boyd et. al. 

1991). These species are much more 

common than C. ophiochilus in 

chaparral ecosystems. Even though they 

grow in close proximity to C. 

ophiochilus, some of these species are 

unable to grow on the specific type of 

soil where C. ophiochilus is found, and 

hybrids were found on the edges of the 

occurrence in a different type of soil 

(Boyd et. al. 1991, p. 38). 

We have little information about the 

pollinators or reproductive biology of 

this species. This species does not have 

a burl (an underground mass from 

which the species can resprout 

following fire) as some species of 

Ceanothus do; instead, the seeds need 

fire to germinate and sprout. Little 

information exists regarding the 

dispersal of this species. 

Primary Constituent Elements for 

Ceanothus ophiochilus 

Pursuant to our regulations, we are 

required to identify the known physical 

and biological features (PCEs) essential 


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to the conservation of Ceanothus 

ophiochilus. All areas proposed as 

critical habitat for C. ophiochilus are 

currently occupied, within the species’

historical geographic range, identified 

within the listing rule, and contain 

sufficient PCEs to support at least one 

life history function. Based on our 

current knowledge of the life history, 

biology, and ecology of the species and 

the requirements of the habitat to 

sustain the essential life history 

functions of the species, we have 

determined that C. ophiochilus’ PCEs 

are: 

(1) Flat to gently sloping north to 

northeast facing ridge tops with slopes 

in the range of 0 to 40 percent slope that 

provide the appropriate solar exposure 

for seedling establishment and growth; 

(2) Soils formed from metavolcanic 

and ultra-basic parent materials and 

deeply weathered gabbro or pyroxeniterich outcrops that provide nutrients and 

space for growth and reproduction. 

Specifically in the areas that Ceanothus 

ophiochilus is found, the soils are: 

(a) Ramona, Cienaba, Las Posas, and 

Vista series in the Agua Tibia 

Wilderness; and 

(b) Cajalco series in the vicinity of 

Vail Lake; and 

(3) Chamise chaparral or mixed 

chamise-ceanothus-arctostaphylos 

chaparral at elevations of 2,000 ft to 

3,000 ft (610 m to 914 m) that provide 

the appropriate canopy cover and 

elevation requirements for growth and 

reproduction. 

This proposed designation is designed 

for the conservation of PCEs necessary 

to support the life history functions 

which were the basis for the proposal. 

Because not all life history functions 

require all the PCEs, not all proposed 

critical habitat will contain all the PCEs. 

Each of the areas proposed in this rule 

have been determined to contain 

sufficient PCEs to provide for one or 

more of the life history functions of 

Ceanothus ophiochilus. In some cases, 

the PCEs exist as a result of ongoing 

Federal actions. As a result, ongoing 

Federal actions at the time of 

designation will be included in the 

baseline in any consultation conducted 

subsequent to this designation. 

Fremontodendron mexicanum 

The specific primary constituent 

elements required for Fremontodendron 

mexicanum are derived from the 

biological and physical needs of the 

species as described in the final listing 

rule (63 FR 54956), as well as the 

information below. 

Space for Growth and Reproduction 

For its individual and population 

growth, Fremontodendron mexicanum 

needs alluvial terraces and benches 

adjacent to moderately sloped streams, 

creeks, and ephemeral drainages; 

stabilized north-to east-facing slopes 

associated with steep slopes (San 

Miguel—Exchequer soil complex has 

slopes in a range of 9 to 70 percent 

(USDA 1973, p. 76)); and canyons (PCE 

#1 and #2). Fremontodendron 

mexicanum occurs at elevations of 900 

ft (274 m) to 3,000 ft (914 m) in the 

United States (63 FR 54956); however, 

in Mexico, F. mexicanum occurs at an 

elevation of approximately 30 ft (9 m). 

Erosion from the steep slopes on Otay 

Mountain provides soils that form 

benches along the streambeds in Cedar 

Canyon and Little Cedar Canyon where 

F. mexicanum grows. Fremontodendron 

mexicanum also occupies some areas on 

slopes adjacent to the streambeds 

(Snapp-Cook 2006). Approximately 

1,000 plants were observed on the 

slopes associated with the alluvial 

terraces in three specific locations 

(Snapp-Cook 2006). In each of these 

locations, plants occurring on the slopes 

were between 10 and 500 ft (3 and 152 

m) from the stream bed. Although the 

role that the plants on sloped areas play 

in the dynamics of growth and 

reproduction of this species is unknown 

at this time, the high density of these 

plants suggests that they may play a 

significant role. 

Fremontodendron mexicanum is 

found growing within open stands of 

Tecate cypress, which often form a 

closed-cone coniferous forest, or is 

interspersed with mixed chaparral and 

Platanus racemosa (sycamore) (PCE #3) 

(63 FR 54956). In addition to cypress 

and sycamore, F. mexicanum is 

frequently associated with 

Dendromecon rigida ssp. rigida (tree 

poppy) and Malosma laurina (laurel 

sumac) (Snapp-Cook 2006). The canyon 

slopes around F. mexicanum are 

generally vegetated with chaparral and 

coastal sage scrub species (63 FR 

54956). This mix of chaparral and 

riparian species may provide adequate 

shade and ground cover to exclude 

nonnative species, preventing such 

species from competing with F. 

mexicanum (Snapp-Cook 2006). 

Fremontodendron mexicanum is a 

facultative resprouter, meaning it is able 

to sprout from underground roots after 

a fire, flood, or other disturbance 

destroys the above ground plant (SnappCook 2006). This makes F. mexicanum 

more resilient to frequent fire than 

obligate seeders (plants that need fire to 

activate the germination of their seeds) 

because obligate seeders like Tecate 

cypress need 6 to 30 years to produce 

sufficient numbers of seeds to reproduce 

following a fire, whereas, F. mexicanum 

has the ability to begin replacing its 

canopy with new basal sprouts 

relatively quickly following a fire 

(Keeley 1986). More research is needed 

into F. mexicanum’s reproduction and 

the role that pollination and seed 

production play in its survival. 

Hydrology and Soil Moisture 

Requirements for the Species 

Fremontodendron mexicanum has 

been cultivated since its discovery in 

the early 1900s, and the data available 

from the cultivation reports suggest that 

this species does not need much water 

and does not do well in soils that do not 

drain well (Bornstein et al. 2005). 

Fremontodendron mexicanum grows on 

terraces and alluvial benches that are 

maintained by a natural hydrological 

cycle, which erodes the surrounding 

metavolcanic soils on the slopes and 

deposits those soils in the stream beds 

(Snapp-Cook 2006). The natural 

hydrological cycle also maintains open 

and semi-open spaces where F. 

mexicanum can establish itself. The 

natural flows may also provide 

transportation of seeds down stream to 

establish and augment downstream 

occurrences. 

Primary Constituent Elements for 

Fremontodendron mexicanum 

Pursuant to our regulations, we are 

required to identify the known physical 

and biological features (PCEs) essential 

to the conservation of Fremontodendron 

mexicanum. The areas proposed as 

critical habitat for F. mexicanum are 

currently occupied, within the species’

historical geographic range, and contain 

sufficient PCEs to support the species. 

Based on our current knowledge of the 

life history, biology, and ecology of the 

species and the requirements of the 

habitat to sustain the essential life 

history functions of the species, we have 

determined that the PCEs for F. 

mexicanum are: 

(1) Alluvial terraces, benches, and 

associated slopes within 500 feet (152 

meters) of streams, creeks, and 

ephemeral drainages where water flows 

primarily after peak seasonal rains with 

a gradient ranging from 3 to 7 percent; 

and stabilized north-to east-facing 

slopes associated with steep (9 to 70 

percent) slopes and canyons that 

provide space for growth and 

reproduction. 

(2) Silty loam soils derived from 

metavolcanic and metabasic bedrock, 

mapped as San Miguel-Exchequer 

Association soil series that provide 


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nutrients and substrate with adequate 

drainage to support seedling 

establishment and growth. 

(3) Open Cupressus forbesii and 

Platanus racemosa stands at elevations 

of 900 ft (274 m) to 3,000 ft (914 m) 

within a matrix of chaparral (such as 

Dendromecon rigida ssp. rigida and 

Malosma laurina) and riparian 

vegetation that provide adequate space 

for growth and reproduction. 

This proposed designation is designed 

for the conservation of PCEs necessary 

to support the life history functions 

which were the basis for the proposal. 

Because not all life history functions 

require all the PCEs, not all proposed 

critical habitat will contain all the PCEs. 

Each of the areas proposed in this rule 

have been determined to contain 

sufficient PCEs to provide for one or 

more of the life history functions of 

Fremontodendron mexicanum. In some 

cases, the PCEs exist as a result of 

ongoing Federal actions. As a result, 

ongoing Federal actions at the time of 

designation will be included in the 

baseline in any consultation conducted 

subsequent to this designation. 

Criteria Used To Identify Critical 

Habitat 

As required by section 4(b)(1)(A) of 

the Act, we use the best scientific data 

available in determining areas that 

contain the features that are essential to 

the conservation of Ceanothus 

ophiochilus and Fremontodendron 

mexicanum. Both of these species have 

small ranges and relatively few 

occurrences; therefore, all known 

occurrences of each species are essential 

for their conservation. 

To delineate the proposed critical 

habitat for Ceanothus ophiochilus, we 

used the following criteria: (1) We 

identified all areas known to be 

occupied by C. ophiochilus at the time 

of listing and/or currently known to be 

occupied using the location data from 

Boyd and Banks (1995); (2) we created 

GIS polygons, using these areas as 

guides, that included the occurrences 

and the ridge tops and north- and 

northeast-facing slopes immediately 

adjacent (within 500 ft (152 m)) to the 

occurrences of C. ophiochilus; and (3) 

we connected the polygons that were 

closer than 0.6 mi (1 km) to reduce 

fragmentation and ensure that the 

subunits captured populations and not 

individual occurrences. 

To delineate the proposed critical 

habitat for Fremontodendron 

mexicanum, we used the following 

criteria: (1) We identified all areas 

known to be occupied by native 

occurrences (we did not include 

occurrences known to be of cultivated 

origin) of F. mexicanum at the time of 

listing and/or currently known to be 

occupied using current data in the 

CNDDB (2005) and data obtained from 

field surveys (Snapp-Cook 2006); (2) we 

created GIS polygons, using these areas 

as guides, that included the alluvial 

terraces and benches occupied by F. 

mexicanum, and the associated slopes 

within 500 ft (152 m) of the areas 

occupied by F. mexicanum to insure 

that adequate space was delineated to 

encompass all existing F. mexicanum 

and the area needed to maintain the 

PCEs; and (3) we connected the 

polygons that were closer than 0.5 mi 

(0.8 km) from one another with a 660 ft. 

(201 m) wide corridor to allow for 

connectivity between known 

occurrences for the transfer of pollen 

and seeds and natural riparian process 

to occur. 

We then analyzed areas meeting these 

criteria to determine if any existing 

conservation or management plans exist 

that benefit the species and their PCEs. 

Ceanothus ophiochilus is included as a 

covered species in the Western 

Riverside County MSHCP. As a result, 

some occupied areas are being proposed 

for exclusion under section 4(b)(2) of 

the Act from the final designation of 

critical habitat for this species (please 

see ‘‘Exclusions under Section 4(b)(2) of 

the Act’’ for a detailed discussion). 

Fremontodendron mexicanum was 

initially considered for coverage under 

the San Diego MSCP; however, it was 

not covered because there was not 

enough information to determine how 

the MSCP would affect this plant. Other 

species covered by the San Diego MSCP, 

such as Tecate cypress and the Thorne’s 

hairstreak butterfly (Mitoura thornei) cooccur with F. mexicanum in Cedar 

Canyon and/or Little Cedar Canyon, and 

the management for these other species 

may benefit F. mexicanum. At this time 

we are not proposing these areas for 

exclusion; however, we are soliciting 

public comment on any benefits to F. 

mexicanum from management of cooccurring species and the 

appropriateness of exclusion in the final 

rule (see Public Comments Solicited 

section). 

The MSHCP and MSCP documents 

were used as aids in determining areas 

that contain the features that are 

essential to the conservation of these 

two species. No areas outside the 

geographical area occupied at the time 

of listing by C. ophiochilus have been 

proposed for designation. Areas known 

to be occupied by F. mexicanum at the 

time of listing plus one newly 

discovered occupied area are proposed 

for designation. On the basis of an 

analysis of the newly discovered 

population we have determined that the 

population is essential for the recovery 

of the species. As such, the specific area 

containing this population has been 

determined to be essential to the 

conservation of F. mexicanum. The 

importance of the identification of any 

additional populations was identified in 

the 1997 biological opinion on the San 

Diego MSCP, which states, ‘‘due to the 

rarity of the species, any new 

population found within the planning 

area will be significant to the survival 

and recovery of this species’ (Service 

1997, p. 112). 

When determining proposed critical 

habitat boundaries, we made every 

effort to avoid including areas such as 

buildings, paved areas, and other 

structures that lack PCEs for 

Fremontodendron mexicanum and/or 

Ceanothus ophiochilus. The scale of the 

maps prepared under the parameters for 

publication within the Code of Federal 

Regulations may not reflect the 

exclusion of such developed areas. Any 

such structures, and the land under 

them inadvertently left inside critical 

habitat boundaries shown on the maps 

for this proposed rule have been 

excluded by text in the proposed rule 

and are not proposed for designation as 

critical habitat. Therefore, Federal 

actions limited to these areas would not 

trigger section 7 consultation, unless 

they may affect the species and/or 

primary constituent elements in 

adjacent critical habitat. 

We are proposing to designate critical 

habitat on lands that we have 

determined are occupied and contain 

sufficient primary constituent elements 

to support life history functions 

essential for the conservation of each 

species. 

Units are proposed for designation 

based on sufficient PCEs being present 

to support one or more of the species 

life history functions. Some units 

contain all PCEs and support multiple 

life processes. Some segments contain 

only a portion of the PCEs necessary to 

support the two species’ particular use 

of that habitat. Where a subset of the 

PCEs are present (such as water 

temperature during migration flows) at 

the time of designation, this rule 

protects those PCEs and thus the 

conservation function of the habitat. 

Section 10(a)(1)(B) of the Act 

authorizes us to issue permits for the 

take of listed species incidental to 

otherwise lawful activities. An 

incidental take permit application must 

be supported by a habitat conservation 

plan (HCP) that identifies conservation 

measures that the permittee agrees to 

implement for the species to minimize 

and mitigate the impacts of the 


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requested incidental take. We often 

exclude non-Federal public lands and 

private lands that are covered by an 

existing operative HCP and executed 

implementation agreement (IA) under 

section 10(a)(1)(B) of the Act from 

designated critical habitat because the 

benefits of exclusion outweigh the 

benefits of inclusion as discussed in 

section 4(b)(2) of the Act. While take of 

listed plant species is not authorized 

under section 10(a)(1)(B) of the Act, 

HCPs can include conservation 

measures that benefit listed plant 

species. We are proposing to exclude 

the private lands at Vail Lake under the 

Western Riverside County MSHCP from 

the final designation of critical habitat 

for Ceanothus ophiochilus because the 

benefits of exclusion outweigh the 

benefits of inclusion (please see 

‘‘Exclusions under Section 4(b)(2) of the 

Act’’ for a detailed discussion). 

Special Management Considerations or 

Protection 

When designating critical habitat, we 

assess whether the areas determined to 

be occupied at the time of listing 

contain one or more PCEs that may 

require special management 

considerations or protection. 

As stated in the final listing rule, 

threats to Ceanothus ophiochilus 

include habitat destruction, alteration, 

fragmentation, and degradation from 

urban development, as well as fire at too 

frequent intervals to allow for sufficient 

seed bank replenishment in the soil (63 

FR 54956). Threats to Fremontodendron 

mexicanum as cited in the final listing 

rule include altered fire regimes, 

indirect impacts from nearby 

urbanization, and increased competition 

from nonnative species (63 FR 54965). 

These threats could impact the PCEs 

determined to be essential for 

conservation of C. ophiochilus and F. 

mexicanum. 

Urban development near Ceanothus 

ophiochilus proposed units may alter 

the habitat characteristics required by 

the species. Land grading in and around 

occurrences of C. ophiochilus may affect 

the topography of the site and change 

the soil composition (PCEs #1 and #2) 

rendering it unsuitable for species 

growth and reproduction. Urban 

development in these areas may also 

encourage invasion by nonnative plant 

species that would change the 

vegetation community and/or directly 

impact the vegetation community (PCE 

#3). In addition, urban development 

near this species may increase the 

frequency of fire. No urban development 

is expected to impact the occurrences of 

C. ophiochilus on land owned by the 

U.S. Forest Service, and all of the 

private land included in this proposed 

critical habitat designation is covered by 

the Western Riverside County MSHCP 

(MSHCP). The single occurrence of C. 

ophiochilus on private land in the 

MSHCP is targeted for development 

avoidance, and this occurrence and 

associated habitat will be managed as 

part of the MSHCP. We do not believe 

that special management or protections 

will be required in addition to what is 

provided for by the MSHCP for the 

occurrence on private land within the 

MSHCP. Therefore, we are proposing to 

exclude private lands covered under the 

MSHCP from the final designation of 

critical habitat for C. ophiochilus (please 

see ‘‘Exclusions under Section 4(b)(2) of 

the Act’’ for a detailed discussion). 

Nonnative plant species such as 

Tamarix spp. (salt cedar) and Cortaderia 

selloana (Pampas grass) could reduce 

the amount of space available to F. 

mexicanum (PCE #1 and #2) and alter 

the vegetation community (PCE #3) if 

they become well established in either 

Cedar Canyon or Little Cedar Canyon. In 

our unit descriptions below for this 

proposed designation, we further 

describe the threats requiring special 

management or protections for each 

proposed unit. 

Proposed Critical Habitat Designation 

for Ceanothus ophiochilus 

In total, approximately 644 acres (ac) 

(262 hectares (ha)) are proposed for the 

designation of critical habitat for these 

two species. We are proposing as critical 

habitat 283 ac (115 ha) of land for 

Ceanothus ophiochilus within one unit. 

This unit is further divided into two 

subunits: subunits 1A (Vail Lake) and 

1B (Agua Tibia Mountains). Of this 283 

ac (115 ha) of land, we are proposing to 

exclude 80 ac (33 ha) under section 

4(b)(2) of the Act from the final 

designation of critical habitat for C. 

ophiochilus (See Figure 1) 

BILLING CODE 4310–55–P 


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Unit 1 is located near Vail Lake in 

southern Riverside County, California. 

The areas being proposed as critical 

habitat constitute our best assessment at 

this time of areas determined to be 

occupied at the time of listing, 

containing the primary constituent 

elements essential to the conservation of 

the species that may require special 

management considerations or 

protection for Ceanothus ophiochilus. 

Below, we present brief descriptions of 

the proposed subunits, reasons why 

they meet the definition of critical 

habitat for C. ophiochilus, and our 

rationale for their inclusion in this 

proposal. 

Unit 1: Western Riverside County 

Subunit 1A, Vail Lake, Riverside 

County, California 

Subunit 1A (Vail Lake) consists of 76 

ac (31 ha) of privately-owned land 

proposed for exclusion from the final 

critical habitat designation. Subunit 1A 

contains CNDDB element occurrence #1, 

and it is one of only three occurrences 

of Ceanothus ophiochilus known of at 

the time of listing. Land in this subunit 

is entirely within an area targeted for 

conservation under the Western 

Riverside County MSHCP. Threats to 

the PCEs that require special 

management or protections include 

impacts to ridge tops (PCE #1) from 

grading activities resulting from urban 

development impacts to the associated 

vegetation community (PCE #3), and 

special planning efforts to maintain a 

natural fire regime. However, the 

Western Riverside County MSHCP 

outlines conservation measures for this 

species and its habitat, and therefore, 

the 76 ac (31 ha) of privately owned 

land is being proposed for exclusion 

from the final designation (please see 

‘‘Exclusions under Section 4(b)(2) of the 

Act’’ for a detailed discussion). 

Subunit 1B, Agua Tibia Mountains, 

Riverside County, California 

Subunit 1B (Agua Tibia Mountains) 

consists of 207 ac (84 ha) of land, of 

which 203 ac (82 ha) is federally owned. 

The remaining 4 ac (2 ha) of privatelyowned land are within an area targeted 

for conservation under the Western 

Riverside County MSHCP. Therefore, 

these lands are being proposed for 

exclusion from the final critical habitat 

designation (please see ‘‘Exclusions 

under Section 4(b)(2) of the Act’’ for a 

detailed discussion). Subunit 1B 

contains two of the three CNDDB 

element occurrences (#2 and #3) of 

Ceanothus ophiochilus known at the 

time of listing. Threats to features 

within this subunit that may require 

special management include impacts to 

ridge tops (PCE #1) from grading 

associated with the creation of fuel 

breaks and impacts to the associated 

vegetation community (PCE #3) 

resulting from unnatural fire regimes. 

Subunit 1B is mostly within the Agua 

Tibia Wilderness of the Cleveland 

National Forest, which is managed by 

the USFS. 

Recently the USFS completed the 

revised Land Management Plans for the 

Four Southern California National 

Forests (Forest Plans). Implementation 

of these Forest Plans was analyzed by 

the Service to address potential impacts 

to C. ophiochilus. This analysis found 

that impacts to C. ophiochilus would be 

minor or negligible upon 

implementation of appropriate 

minimization measures due to the low 

impact nature of activities planned (e.g., 

dispersed recreation, non-motorized 

trails) (Service 2005 p. 129–132). 

However, the plan did not set up 

specific management and monitoring for 

C. ophiochilus, which may be necessary 

to insure that the occurrences of C. 

ophiochilus remain healthy and viable. 

As a result, we believe that the features 

essential to the conservation of C. 

ophiochilus within this area require 

special management to address altered 

fire regime and nonnative species. 

Therefore, we are proposing to include 

these lands containing features essential 

to the conservation of the species in this 

critical habitat proposal. In this 

proposed rule, we ask for public 

comment on the appropriateness of 

including portions of the Agua Tibia 

Wilderness in the final designation. 

Proposed Critical Habitat Designation 

for Fremontodendron mexicanum 

We are proposing as critical habitat 

361 ac (147 ha) of land for 

Fremontodendron mexicanum within 

one unit. This unit is further divided 

into two subunits: subunits 1A (Cedar 

Canyon) and 1B (Little Cedar Canyon). 

The one unit of critical habitat is located 

on Otay Mountain in southern San 

Diego County, California. This unit 

contains privately owned land and 

federally owned land in the Otay 

Mountain Wilderness Area managed by 

the Bureau of Land Management (BLM) 

(Otay Mountain Wilderness Act of 1999, 

Pub. L. 106–145, H.R. 15). The critical 

habitat described below constitutes our 

best assessment of specific areas 

determined to be occupied at the time 

of listing, containing the primary 

constituent elements essential to the 

conservation of the species that may 

require special management 

considerations or protection for 

Fremontodendron mexicanum. Critical 

habitat also includes those additional 

areas that were not known to be 

occupied at the time of listing, but are 

currently occupied and contain the 

primary constituent elements essential 

to the conservation of the species. These 

latter lands (Subunit 1B: Little Cedar 

Canyon) have been determined to be 

essential to the conservation of F. 

mexicanum. 

Below, we present brief descriptions 

of the proposed subunits, reasons why 

they meet the definition of critical 

habitat for Fremontodendron 

mexicanum, and our rationale for their 

inclusion in this proposal. 

Unit 1: Otay Mountain 

Unit 1 consists of 361 ac (147 ha) on 

Otay Mountain in San Diego County and 

contains Federal land managed by the 

BLM and private land. Subunit 1A 

(Cedar Canyon) and subunit 1B (Little 

Cedar Canyon) are each separate 

canyons on the northwest portion of 

Otay Mountain; subunit 1A 

encompasses proposed critical habitat 

within Cedar Canyon and subunit 1B 

encompasses proposed critical habitat 

within Little Cedar Canyon. This unit 

contains all of the PCEs required by 

Fremontodendron mexicanum and is 

essential to the conservation of the 

species because it supports the only 

natural occurrences of this species in 

the United States. 

Otay Mountain is located in southern 

San Diego County and is part of the San 

Ysidro Mountains. The Otay Mountain 

Wilderness Act of 1999 states, ‘‘this 

rugged mountain adjacent to the United 

States-Mexico border is internationally 

known for its diversity of unique and 

sensitive plants.’’ The base of Otay 

Mountain is at 500 ft (152 m) elevation 

and the peak is at 3,566 ft (1,087 m) 

elevation. The distance from the north 

base of the mountain to the peak is 4 mi 

(6.4 km) and from the western flank the 

distance is 4.5 mi (7.2 km). 

The majority of lands proposed for 

designation in this unit are federally 

owned and under the management of 

the BLM. This area is also within the 

Multiple Habitat Preserve Area (MHPA)/ 

Pre-approved Mitigation Area (PAMA) 

of the MSCP for the City and County of 

San Diego (MSCP). At the time the plan 

was written, Fremontodendron 

mexicanum was not included for 

coverage under the MSCP because there 

was not enough information on this 

species. In our analysis of the MSCP, we 

concluded that the implementation of 

the plan would not jeopardize the 

species (Service 1997, p. 112). Using 

GIS analysis, we determined that the 

proposed critical habitat for this species 

overlaps with the distribution of other 


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species that are covered species under 

the MSCP. These species include: 

Tecate cypress; Muilla clevelandii (San 

Diego goldenstar); Tetracoccus dioicus 

(Parry’s tetracoccus); coastal California 

gnatcatcher (Polioptila californica 

californica); and the Thorne’s hairstreak 

butterfly (Mitoura thornei). The BLM 

currently has a MOU with several 

parties stating that the management of 

the Otay Mountain will follow the 

MSCP. We are requesting public 

comment to determine if the protection 

and management provided for the 

species covered by the MSCP benefits F. 

mexicanum and its PCEs. However, at 

this time we are not proposing these 

areas for exclusion based on the MSCP. 

Subunit 1A, Cedar Canyon, Otay 

Mountain, San Diego County, California 

Subunit 1A, Cedar Canyon, consists of 

259 ac (105 ha) of land proposed for 

designation as critical habitat. Subunit 

1A contains CNDDB element 

occurrences #1, #13, and #16. Land in 

this subunit is entirely within the Cedar 

Canyon Area of Critical Environmental 

Concern (ACEC) and a Research Natural 

Area (RNA) (BLM 1994, pp. 1, 19, 22). 

The BLM has not yet developed a 

specific management plan that outlines 

how the species would be managed for 

in the Cedar Canyon ACEC and RNA. 

The majority of this subunit (145 ac (59 

ha)) is managed by BLM as part of the 

Otay Mountain Wilderness Area. An 

additional 114 ac (46 ha) are on private 

land. This subunit was known to be 

occupied at the time of listing and 

contains all of the PCEs. This 

population requires special management 

considerations or protection to 

adequately protect it from negative 

impacts related to fire fighting activities 

and possible negative impacts from the 

growth of nonnative species that may 

affect the space available for this 

species. 

In 1998, when Fremontodendron 

mexicanum was federally listed, less 

than 100 individual plants were 

documented from Cedar Canyon. This 

occurrence was thought to be the only 

location where F. mexicanum occurred 

naturally in the United States. Prior to 

the 2003 fire, the canyon was dominated 

by Tecate cypress and riparian 

vegetation. In late 2005 and early 2006 

when this canyon was surveyed for F. 

mexicanum by Service biologists, over 

1,000 plants were found. Because this 

species is a facultative resprouter (i.e., 

resprouts and produces seedlings after 

fire), this increase in numbers may be a 

result of the 2003 Otay fire that burned 

Cedar Canyon. This phenomenon of 

healthy F. mexicanum plants growing 

following fire was also recorded 

following a 1979 fire in Cedar Canyon 

(CNDDB 2005 p. 1). Future monitoring 

of this occurrence of F. mexicanum will 

help determine if the number of plants 

recorded in 2005 and 2006 decline as 

other vegetation further recovers 

following the 2003 fire. 

Subunit 1B, Little Cedar Canyon, Otay 

Mountain, San Diego County, California 

Subunit 1B, Little Cedar Canyon, 

consists of 102 ac (42 ha) of land 

proposed for designation as critical 

habitat. This occurrence has not yet 

been assigned a number by the CNDDB. 

Little Cedar Canyon is located 

approximately 1.9 miles (3 km) to the 

west of Cedar Canyon. Within this 

subunit, 83 ac (34 ha) of land are 

federally owned and managed by the 

BLM as part of the Otay Mountain 

Wilderness Area and 19 ac (8 ha) are on 

privately owned land. However, this 

area is not within the Cedar Canyon 

ACEC and RNA because the presence of 

the species in Little Cedar Canyon was 

not known at the time the ACEC and 

RNA were created. Though only 26 

plants were documented in Little Cedar 

Canyon in early 2006, these plants were 

healthy, and evidence of mature seed 

from 2005 was detected. Although this 

occurrence is a relatively small one 

when compared to the more than 1,000 

plants in Cedar Canyon estimated in 

early 2006, the Little Cedar Canyon 

occurrence likely will help to stabilize 

the existence of F. mexicanum in the 

United States. Despite relatively few 

plants found in this canyon, the 

discovery of F. mexicanum in Little 

Cedar Canyon almost doubles the 

amount of known occupied habitat for 

this species in the United States. Prior 

to the 2003 fire, Little Cedar Canyon 

likely would have been difficult to 

survey due to thick riparian vegetation 

and chaparral. This subunit was not 

known to be occupied at the time of 

listing; however, it is considered to be 

essential to the conservation of this 

species. This subunit contains all of the 

PCEs. This population and the essential 

features within the unit require special 

management or protection to adequately 

protect it from negative impacts related 

to fire fighting activities and possible 

negative impacts from the growth of 

nonnative species that may affect the 

space available for this species. 

Table 1 provides the approximate area 

(ac/ha) determined to meet the 

definition of critical habitat for C. 

ophiochilus and F. mexicanum and 

indicates the areas proposed for final 

designation and the areas proposed for 

exclusion from the final critical habitat 

designation under section 4(b)(2) of the 

Act (please see ‘‘Exclusions under 

Section 4(b)(2) of the Act’’ for a detailed 

discussion). 

TABLE 1.—AREAS PROPOSED FOR FINAL CRITICAL HABITAT DESIGNATION FOR CEANOTHUS OPHIOCHILUS AND

FREMONTODENDRON MEXICANUM, AND THE AREA PROPOSED FOR EXCLUSION FROM THE FINAL CRITICAL HABITAT

DESIGNATION UNDER SECTION 4(B)(2) OF THE ACT

Critical habitat unit Land ownership 

Area that meets the 

definition of critial 

habitat 

Area proposed as 

final critital habitat 

Area proposed for 

exclusion from final 

critical habitat 

Ceanothus ophiochilus 

1. Western Riverside County 

1A. Vail Lake ................................................... Private ............................ 76 ac (31 ha) ......... 0 ac (0 ha) ............. 76 ac (31 ha)*. 

1B. Agua Tibia Mountains .............................. U.S. Forest Service ....... 203 ac (82 ha) ....... 203 ac (82 ha) ....... 0 ac (0 ha). 

Private ............................ 4 ac (2 ha) ............. 0 ac (0 ha) ............. 4 ac (2 ha)*. 

Subtotal .................................................... ........................................ 283 ac (115 ha) ..... 203 ac (82 ha) ....... 80 ac (33 ha). 

Fremontodendron mexicanum 

1. Otay Mountain 

1A. Cedar Canyon .......................................... BLM ................................ 145 ac (59 ha) ....... 145 ac (59 ha) ....... 0 ac (0 ha). 

Private ............................ 114 ac (46 ha) ....... 114 ac (46 ha) ....... 0 ac (0 ha). 

1B. Little Cedar Canyon ................................. BLM ................................ 83 ac (34 ha) ......... 83 ac (34 ha) ......... 0 ac (0 ha). 


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TABLE 1.—AREAS PROPOSED FOR FINAL CRITICAL HABITAT DESIGNATION FOR CEANOTHUS OPHIOCHILUS AND

FREMONTODENDRON MEXICANUM, AND THE AREA PROPOSED FOR EXCLUSION FROM THE FINAL CRITICAL HABITAT

DESIGNATION UNDER SECTION 4(B)(2) OF THE ACT—Continued 

Critical habitat unit Land ownership 

Area that meets the 

definition of critial 

habitat 

Area proposed as 

final critital habitat 

Area proposed for 

exclusion from final 

critical habitat 

Private ............................ 19 ac (8 ha) ........... 19 ac (8 ha) ........... 0 ac (0 ha). 

Subtotal .................................................... ........................................ 361 ac (147 ha) ..... 361 ac (147 ha) ..... 0 ac (0 ha). 

Total ......................................................... ........................................ 644 ac (262 ha) ..... 564 ac (229 ha) ..... 80 ac (33 ha). 

* Lands proposed for exclusion under section 4(b)(2) of the Act due to inclusion in the Western Riverside County MSHCP. 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7 of the Act requires Federal 

agencies, including the Service, to 

ensure that actions they fund, authorize, 

or carry out are not likely to destroy or 

adversely modify critical habitat. In our 

regulations at 50 CFR 402.02, we define 

destruction or adverse modification as 

‘‘a direct or indirect alteration that 

appreciably diminishes the value of 

critical habitat for both the survival and 

recovery of a listed species. Such 

alterations include, but are not limited 

to, alterations adversely modifying any 

of those physical or biological features 

that were the basis for determining the 

habitat to be critical.’’ However, recent 

decisions by the 5th and 9th Circuit 

Court of Appeals have invalidated this 

definition (see Gifford Pinchot Task 

Force v. U.S. Fish and Wildlife Service, 

378 F. 3d 1059 (9th Cir 2004) and Sierra 

Club v. U.S. Fish and Wildlife Service et 

al., 245 F.3d 434, 442F (5th Cir 2001)). 

Pursuant to current national policy and 

the statutory provisions of the Act, 

destruction or adverse modification is 

determined on the basis of whether, 

with implementation of the proposed 

Federal action, the affected critical 

habitat would remain functional (or 

retain the current ability for the primary 

constituent elements to be functionally 

established) to serve the intended 

conservation role for the species. 

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 

proposed or designated. Regulations 

implementing this interagency 

cooperation provision of the Act are 

codified at 50 CFR part 402. 

Section 7(a)(4) of the Act 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. This is a procedural 

requirement only. However, once a 

proposed species becomes listed, or 

proposed critical habitat is designated 

as final, the full prohibitions of section 

7(a)(2) apply to any Federal action. The 

primary utility of the conference 

procedures is to maximize the 

opportunity for a Federal agency to 

adequately consider proposed species 

and critical habitat and avoid potential 

delays in implementing their proposed 

action as a result of the section 7(a)(2) 

compliance process, should those 

species be listed or the critical habitat 

designated. 

Under conference procedures, the 

Service may provide advisory 

conservation recommendations to assist 

the agency in eliminating conflicts that 

may be caused by the proposed action. 

The Service may conduct either 

informal or formal conferences. Informal 

conferences are typically used if the 

proposed action is not likely to have any 

adverse effects to the proposed species 

or proposed critical habitat. Formal 

conferences are typically used when the 

Federal agency or the Service believes 

the proposed action is likely to cause 

adverse effects to proposed species or 

critical habitat, inclusive of those that 

may cause jeopardy or adverse 

modification. 

The results of an informal conference 

are typically transmitted in a conference 

report; while the results of a formal 

conference are typically transmitted in a 

conference opinion. Conference 

opinions on proposed critical habitat are 

typically prepared according to 50 CFR 

402.14, as if the proposed critical 

habitat were designated. We may adopt 

the conference opinion as the biological 

opinion when the critical habitat is 

designated, if no substantial new 

information or changes in the action 

alter the content of the opinion (see 50 

CFR 402.10(d)). As noted above, any 

conservation recommendations in a 

conference report or opinion are strictly 

advisory. 

If a species is listed or critical habitat 

is designated, section 7(a)(2) of the Act 

requires Federal agencies to ensure that 

activities 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. As a result of this 

consultation, compliance with the 

requirements of section 7(a)(2) will be 

documented through the Service’s 

issuance of: (1) A concurrence letter for 

Federal actions that may affect, but are 

not likely to adversely affect, listed 

species or critical habitat; or (2) a 

biological opinion for Federal actions 

that may affect, but are likely to 

adversely affect, listed species or critical 

habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

result in jeopardy to a listed species or 

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 jeopardy to the listed 

species or 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 a new 


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species is listed or critical habitat is 

subsequently designated that may be 

affected 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 with us on 

actions for which formal consultation 

has been completed, if those actions 

may affect subsequently listed species 

or designated critical habitat or 

adversely modify or destroy proposed 

critical habitat. 

Federal activities that may affect 

Ceanothus ophiochilus and 

Fremontodendron mexicanum or its 

designated critical habitat will require 

section 7 consultation under the Act. 

Activities on State, Tribal, local or 

private lands requiring a Federal permit 

(such as a permit from the Corps under 

section 404 of the Clean Water Act or a 

permit under section 10(a)(1)(B) of the 

Act from the Service) or involving some 

other Federal action (such as funding 

from the Federal Emergency 

Management Agency) will also be 

subject to the section 7 consultation 

process. Federal actions not affecting 

listed species or critical habitat, and 

actions on State, Tribal, local or private 

lands that are not federally funded, 

authorized, or permitted, do not require 

section 7 consultations. 

Application of the Jeopardy and 

Adverse Modification Standards for 

Actions Involving Effects to 

Fremontodendron Mexicanum and 

Ceanothus Ophiochilus and Its Critical 

Habitat 

Jeopardy Standard 

Prior to and following designation of 

critical habitat, the Service has applied 

and will apply an analytical framework 

for Ceanothus ophiochilus and 

Fremontodendron mexicanum jeopardy 

analyses that rely heavily on the 

importance of core area occurrences to 

the survival and recovery of C. 

ophiochilus and F. mexicanum. The 

section 7(a)(2) analysis is focused not 

only on these occurrences but also on 

the habitat conditions necessary to 

support them. 

The jeopardy analysis usually 

expresses the survival and recovery 

needs of Ceanothus ophiochilus and 

Fremontodendron mexicanum in a 

qualitative fashion without making 

distinctions between what is necessary 

for survival and what is necessary for 

recovery. Generally, if a proposed 

Federal action is incompatible with the 

viability of the affected core area 

population(s), inclusive of associated 

habitat conditions, a jeopardy finding is 

considered to be warranted, because of 

the relationship of each core area 

occurrence to the survival and recovery 

of the species as a whole. 

Adverse Modification Standard 

The analytical framework described 

in the Director’s December 9, 2004, 

memorandum may be used to complete 

section 7(a)(2) analyses for Federal 

actions affecting Ceanothus ophiochilus 

and Fremontodendron mexicanum 

critical habitat. The key factor related to 

the adverse modification determination 

is whether, with implementation of the 

proposed Federal action, the affected 

critical habitat would remain functional 

(or retain the current ability for the 

primary constituent elements to be 

functionally established) to serve the 

intended conservation role for the 

species. Generally, the conservation role 

of C. ophiochilus and F. mexicanum 

critical habitat units is to support viable 

core area occurrences. 

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

to briefly evaluate and describe in any 

proposed or final regulation that 

designates critical habitat those 

activities involving a Federal action that 

may destroy or adversely modify such 

habitat, or that may be affected by such 

designation. Activities that may destroy 

or adversely modify critical habitat may 

also jeopardize the continued existence 

of the species. 

Activities that may destroy or 

adversely modify critical habitat are 

those that alter the PCEs to an extent 

that the conservation value of critical 

habitat for Ceanothus ophiochilus and 

Fremontodendron mexicanum is 

appreciably reduced. Activities that, 

when carried out, funded, or authorized 

by a Federal agency, may affect critical 

habitat and therefore result in 

consultation for C. ophiochilus and F. 

mexicanum, include, but are not limited 

to: 

(1) Actions that would directly impact 

C. ophiochilus and F. mexicanum 

habitat. Such activities could include, 

but are not limited to, road grading, 

streambed clearing, the creation of 

firebreaks, and grading near these 

occurrences. These activities could 

change the physical and biological 

features of the habitat by affecting the 

topography of the site; removing soil 

and associated species; burying the 

appropriate soil for these species, 

making it unavailable for species growth 

and/or reproduction; or encouraging 

invasion by nonnative plant species; 

(2) Actions that would alter fire 

frequency in the areas occupied by C. 

ophiochilus. Such activities could 

include, but are not limited to, 

prescribed burns. These activities could 

alter the soil composition by increasing 

the nutrients in the soil; and 

(3) Actions that would increase the 

presence of nonnative species. Such 

activities could include, but are not 

limited to, seeding areas with nonnative 

species following a fire and 

inadvertently introducing nonnative 

seed via machinery, vehicles, and field 

gear. These activities could reduce the 

ability of these two species to grow and 

produce seed because the nonnative 

species may crowd out or otherwise 

compete with Ceanothus ophiochilus 

and Fremontodendron mexicanum. An 

increase presence of nonnative species 

could also change the fire regime as 

mentioned above or could alter the soil 

composition. 

All lands proposed as critical habitat, 

including those that have been proposed 

for exclusion from the final 

designations, contain features essential 

to the conservation of Ceanothus 

ophiochilus and Fremontodendron 

mexicanum. Except for the Little Cedar 

Canyon population of F. mexicanum, all 

subunits are within the geographic 

range of either species, and were known 

to be occupied at the time of listing. All 

of the subunits proposed for designation 

are currently occupied. Federal agencies 

already consult with us on activities in 

areas occupied by these species, or if 

either species may be affected by the 

action, to ensure that their actions do 

not jeopardize the continued existence 

of C. ophiochilus and F. mexicanum. 

Exclusions Under Section 4(b)(2) of the 

Act 

There are multiple ways to provide 

management for species’ habitat. 

Statutory and regulatory frameworks 

that exist at a local level can provide 

such protection and management, as can 

lack of pressure for change, such as 

areas too remote for anthropogenic 

disturbance. Finally, State, local, or 

private management plans, as well as 

management under Federal agencies’

jurisdictions, can provide protection 

and management to avoid the need for 

designation of critical habitat. When we 

consider a plan to determine its 

adequacy in protecting habitat, we 

consider whether the plan as a whole 

will provide the same level of protection 

that designation of critical habitat 

would provide. The plan need not lead 

to exactly the same result as a 

designation in every individual 

application, as long as the protection it 

provides is equivalent overall. In 

making this determination, we examine 

whether the plan provides management, 

protection, or enhancement of the PCEs 

that is at least equivalent to that 


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provided by a critical habitat 

designation, and whether there is a 

reasonable expectation that the 

management, protection, or 

enhancement actions will continue into 

the foreseeable future. Each review is 

particular to the species and the plan, 

and some plans may be adequate for 

some species and inadequate for others. 

Section 4(b)(2) of the Act states that 

critical habitat shall be designated, and 

revised, on the basis of the best 

available scientific data after taking into 

consideration the economic impact, 

national security impact, and any other 

relevant impact of specifying any 

particular area as critical habitat. The 

Secretary may exclude an area from 

critical habitat if he determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless he 

determines, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. In making that determination, 

the Secretary is afforded broad 

discretion and the Congressional record 

is clear that in making a determination 

under the section, the Secretary has 

discretion as to which factors and how 

much weight will be given to any factor. 

Under section 4(b)(2), in considering 

whether to exclude a particular area 

from the designation, we must identify 

the benefits of including the area in the 

designation, identify the benefits of 

excluding the area from the designation, 

and determine whether the benefits of 

exclusion outweigh the benefits of 

inclusion. If an exclusion is 

contemplated, then we must determine 

whether excluding the area would result 

in the extinction of the species. In the 

following sections, we address a number 

of general issues that are relevant to the 

exclusions we considered. In addition, 

the Service is conducting an economic 

analysis of the impacts of the proposed 

critical habitat designation and related 

factors, which will be available for 

public review and comment. Based on 

public comment on that document, the 

proposed designation itself, and the 

information in the final economic 

analysis, additional areas beyond those 

identified in this assessment may be 

excluded from critical habitat by the 

Secretary under the provisions of 

section 4(b)(2) of the Act. This is 

provided for in the Act, and in our 

implementing regulations at 50 CFR 

242.19. 

Conservation Partnerships on NonFederal Lands 

Most federally listed species in the 

United States will not recover without 

the cooperation of non-Federal 

landowners. More than 60 percent of the 

United States is privately owned 

(National Wilderness Institute 1995) and 

at least 80 percent of endangered or 

threatened species occur either partially 

or solely on private lands (Crouse et al. 

2002). Stein et al. (1995) found that only 

about 12 percent of listed species were 

found almost exclusively on Federal 

lands (i.e., 90–100 percent of their 

known occurrences were restricted to 

Federal lands) and that 50 percent of 

federally listed species are not known to 

occur on Federal lands at all. 

Given the distribution of listed 

species with respect to land ownership, 

conservation of listed species in many 

parts of the United States is dependent 

upon working partnerships with a wide 

variety of entities and the voluntary 

cooperation of many non-Federal 

landowners (Wilcove and Chen 1998; 

Crouse et al. 2002; James 2002). 

Building partnerships and promoting 

voluntary cooperation of landowners is 

essential to understanding the status of 

species on non-Federal lands and is 

necessary to implement recovery actions 

such as reintroducing listed species, 

habitat restoration, and habitat 

protection. 

Many non-Federal landowners derive 

satisfaction in contributing to 

endangered species recovery. The 

Service promotes these private-sector 

efforts through the Four Cs 

philosophy—conservation through 

communication, consultation, and 

cooperation. This philosophy is evident 

in Service programs such as HCPs, Safe 

Harbors, Candidate Conservation 

Agreements, Candidate Conservation 

Agreements with Assurances, and 

conservation challenge cost-share. Many 

private landowners, however, are wary 

of the possible consequences of 

encouraging endangered species to their 

property, and there is mounting 

evidence that some regulatory actions 

by the Federal government, while wellintentioned and required by law, can 

under certain circumstances have 

unintended negative consequences for 

the conservation of species on private 

lands (Wilcove et al. 1996; Bean 2002; 

Conner and Mathews 2002; James 2002; 

Koch 2002; Brook et al. 2003). Many 

landowners fear a decline in their 

property value due to real or perceived 

restrictions on land-use options where 

threatened or endangered species are 

found. Consequently, harboring 

endangered species is viewed by many 

landowners as a liability, resulting in 

anti-conservation incentives because 

maintaining habitats that harbor 

endangered species represents a risk to 

future economic opportunities (Main et 

al. 1999; Brook et al. 2003). 

The purpose of designating critical 

habitat is to contribute to the 

conservation of threatened and 

endangered species and the ecosystems 

upon which they depend. The outcome 

of the designation, triggering regulatory 

requirements for actions funded, 

authorized, or carried out by Federal 

agencies under section 7 of the Act, can 

sometimes be counterproductive to its 

intended purpose on non-Federal lands. 

According to some researchers, the 

designation of critical habitat on private 

lands significantly reduces the 

likelihood that landowners will support 

and carry out conservation actions 

(Main et al. 1999; Bean 2002; Brook et 

al. 2003). The magnitude of this 

negative outcome is greatly amplified in 

situations where active management 

measures (e.g., reintroduction, fire 

management, control of invasive 

species) are necessary for species 

conservation (Bean 2002). 

The Service believes that the 

judicious use of excluding specific areas 

of non-federally owned lands from 

critical habitat designations can 

contribute to species recovery and 

provide a level of conservation superior 

to that of critical habitat alone. For 

example, less than 17 percent of Hawaii 

is federally owned, but the State is 

home to more than 24 percent of all 

federally listed species, most of which 

will not recover without State and 

private landowner cooperation. Castle 

and Cooke Resorts, LLC, which owns 99 

percent of the Island of Lanai, entered 

into a conservation agreement with the 

Service. The conservation agreement 

provides conservation benefits to target 

species through management actions 

that remove threats to these target 

species. These actions will significantly 

improve the habitat for all currently 

occurring species. Because of the low 

likelihood of a Federal nexus on the 

island, we believe this agreement 

provides a superior level of protection 

to the affected species than would be 

provided through the designation of 

critical habitat. 

The Department’s Four Cs 

philosophy—conservation through 

communication, consultation, and 

cooperation—is the foundation for 

developing the tools of conservation. 

These tools include conservation grants, 

funding for Partners for Fish and 

Wildlife Program, the Coastal Program, 

and cooperative-conservation challenge 

cost-share grants. Our Private 

Stewardship Grant program and 

Landowner Incentive Program provide 

assistance to private land owners in 

their voluntary efforts to protect 


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threatened, imperiled, and endangered 

species, including the development and 

implementation of HCPs. 

Conservation agreements with nonFederal landowners (e.g., Habitat 

Conservation Plans (HCPs), contractual 

conservation agreements, easements, 

and stakeholder-negotiated State 

regulations) enhance species 

conservation by extending species 

protections beyond those available 

through section 7 consultations. In the 

past decade, we have encouraged nonFederal landowners to enter into 

conservation agreements, based on a 

view that we can achieve greater species 

conservation on non-Federal land 

through such partnerships than we can 

through coercive methods (61 FR 63854; 

December 2, 1996). 

General Principles of Section 7 

Consultations Used in the 4(b)(2) 

Balancing Process 

The most direct, and potentially 

largest, regulatory benefit of critical 

habitat is that federally authorized, 

funded, or carried out activities require 

consultation pursuant to section 7 of the 

Act to ensure that they are not likely to 

destroy or adversely modify critical 

habitat. There are two limitations to this 

regulatory effect. First, it only applies 

where there is a Federal nexus—if there 

is no Federal nexus, designation itself 

does not restrict actions that destroy or 

adversely modify critical habitat. 

Second, it only limits destruction or 

adverse modification. By its nature, the 

prohibition on adverse modification is 

designed to ensure that those areas that 

contain the physical and biological 

features essential to the conservation of 

the species, or unoccupied areas that are 

essential to the conservation of the 

species, are not eroded. Critical habitat 

designation alone, however, does not 

require specific steps toward recovery. 

Once consultation under section 7 of 

the Act is triggered, the process may 

conclude informally when the Service 

concurs in writing that the proposed 

Federal action is not likely to adversely 

affect the listed species or its critical 

habitat. However, if the Service 

determines through informal 

consultation that adverse impacts are 

likely to occur, then formal consultation 

would be initiated. Formal consultation 

concludes with a biological opinion 

issued by the Service on whether the 

proposed Federal action is likely to 

jeopardize the continued existence of a 

listed species or result in destruction or 

adverse modification of critical habitat, 

with separate analyses being made 

under both the jeopardy and the adverse 

modification standards. For critical 

habitat, a biological opinion that 

concludes in a determination of no 

destruction or adverse modification may 

contain discretionary conservation 

recommendations to minimize adverse 

effects to primary constituent elements, 

but it would not contain any mandatory 

reasonable and prudent measures or 

terms and conditions. Reasonable and 

prudent alternatives to the proposed 

Federal action would only be issued 

when the biological opinion results in a 

jeopardy or adverse modification 

conclusion. 

We also note that for 30 years prior to 

the Ninth Circuit Court’s decision in 

Gifford Pinchot Task Force v. U.S. Fish 

and Wildlife Service, 378 F.3d 1059 (9th 

Cir 2004) (hereinafter Gifford Pinchot), 

the Service equated the jeopardy 

standard with the standard for 

destruction or adverse modification of 

critical habitat. The Court ruled that the 

Service could no longer equate the two 

standards and that adverse modification 

evaluations require consideration of 

impacts on the recovery of species. 

Thus, under the Gifford Pinchot 

decision, critical habitat designations 

may provide greater benefits to the 

recovery of a species. However, we 

believe the conservation achieved 

through implementing habitat 

conservation plans (HCPs) or other 

habitat management plans is typically 

greater than would be achieved through 

multiple site-by-site, project-by-project, 

section 7 consultations involving 

consideration of critical habitat. 

Management plans commit resources to 

implement long-term management and 

protection to particular habitat for at 

least one and possibly other listed or 

sensitive species. Section 7 

consultations only commit Federal 

agencies to prevent adverse 

modification to critical habitat caused 

by the particular project, and they are 

not committed to provide conservation 

or long-term benefits to areas not 

affected by the proposed project. Thus, 

any HCP or management plan that 

considers enhancement or recovery as 

the management standard will always 

provide as much or more benefit than a 

consultation for critical habitat 

designation conducted under the 

standards required by the Ninth Circuit 

in the Gifford Pinchot decision. 

The information provided in this 

section applies to all the discussions 

below that discuss the benefits of 

inclusion and exclusion of critical 

habitat in that it provides the framework 

for the consultation process. 

Educational Benefits of Critical Habitat 

A benefit of including lands in critical 

habitat is that the designation of critical 

habitat serves to educate landowners, 

State and local governments, and the 

public regarding the potential 

conservation value of an area. This 

helps focus and promote conservation 

efforts by other parties by clearly 

delineating areas of high conservation 

value for Ceanothus ophiochilus and 

Fremontodendron mexicanum. In 

general, the educational benefit of a 

critical habitat designation always 

exists, although in some cases it may be 

redundant with other educational 

effects. For example, HCPs have 

significant public input and may largely 

duplicate the educational benefit of a 

critical habitat designation. This benefit 

is closely related to a second, more 

indirect benefit: that designation of 

critical habitat would inform State 

agencies and local governments about 

areas that could be conserved under 

State laws or local ordinances. 

However, we believe that there would 

be little additional educational benefit 

gained from the designation of critical 

habitat in areas we are proposing to 

exclude in this rule. The educational 

benefit normally served by the 

designation of critical habitat has 

already been satisfied by other existing 

habitat management protections. These 

protections have provided State 

agencies and local governments, as well 

as Federal agencies with information on 

the areas that would benefit from the 

protection and enhancement of 

Ceanothus ophiochilus and 

Fremontodendron mexicanum habitat. 

Thus, in areas proposed to be excluded 

from critical habitat, we believe that the 

educational benefits have already been 

provided for. 

The Service is conducting an 

economic analysis of the potential 

impacts of the proposed critical habitat 

designation and related factors, which 

will be available for public review and 

comment. Based on public comment on 

that document, the proposed 

designation itself, and the information 

in the final economic analysis, 

additional areas beyond those identified 

in this assessment may be excluded 

from critical habitat by the Secretary 

under the provisions of section 4(b)(2) 

of the Act. This is provided for in the 

Act, and in our implementing 

regulations at 50 CFR 242.19. 

The information provided in this 

section applies to all the discussions 

below on the benefits of inclusion and 

exclusion of critical habitat. 

Benefits of Excluding Lands With HCPs 

or Other Approved Management Plans 

From Critical Habitat 

The benefits of excluding lands with 

HCPs or other approved management 

plans from critical habitat designation 


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include relieving landowners, 

communities, counties, and States of 

any additional regulatory burden that 

may occur as a result of a critical habitat 

designation. Most HCPs and other 

conservation plans take many years to 

develop and, upon completion, are 

consistent with the recovery objectives 

for listed species that are covered within 

the plan area. In addition, many 

conservation plans provide conservation 

benefits to unlisted sensitive species; 

measures designed to proactively 

protect species to ensure that listing 

under the Act will not be necessary. 

Imposing an additional regulatory 

review as a result of the designation of 

critical habitat may undermine these 

important conservation efforts and 

partnerships. 

Designation of critical habitat within 

the boundaries of management plans 

that provide conservation measures for 

a species could be viewed as a 

disincentive to those entities currently 

developing these plans or contemplating 

them in the future, because one of the 

incentives for undertaking conservation 

is greater ease of permitting where listed 

species are affected. Addition of a new 

regulatory requirement would remove a 

significant incentive for undertaking the 

time and expense of management 

planning. In fact, designating critical 

habitat in areas covered by a pending 

HCP or conservation plan could result 

in the loss of some species’ benefits if 

participants abandon the planning 

process, in part because of the strength 

of the perceived additional regulatory 

compliance that such designation would 

entail. The time and cost of regulatory 

compliance for a critical habitat 

designation do not have to be quantified 

in order for them to be perceived as 

additional Federal regulatory burden 

sufficient to discourage continued 

participation in plans targeting listed 

species’ conservation. 

A related benefit of excluding lands 

within an HCP or management plan 

from critical habitat designation is the 

unhindered, continued ability to seek 

new partnerships with future plan 

participants, including States, counties, 

local jurisdictions, conservation 

organizations, and private landowners, 

which together can implement 

conservation actions that we would be 

unable to accomplish otherwise. 

Designation of lands within approved 

HCP or management plan areas as 

critical habitat would likely have a 

negative effect on our ability to establish 

new partnerships to develop these 

plans, particular plans that address 

landscape-level conservation of species 

and their habitats. By excluding these 

lands, we preserve our current 

partnerships and encourage additional 

conservation actions in the future. 

Furthermore, an HCP or NCCP/HCP 

application must itself be consulted 

upon pursuant to section 7 of the Act. 

Such a consultation would review the 

effects of all activities covered by the 

HCP that might adversely impact the 

species under a jeopardy standard, 

including possible habitat modification 

even without the critical habitat 

designation. In addition, Federal actions 

not covered by the HCP in areas 

occupied by listed species would still 

require consultation under section 7 of 

the Act. 

The information provided in this 

section applies to all the discussions 

below that discuss the benefits of 

inclusion and exclusion of critical 

habitat. 

Relationship of Critical Habitat to 

Habitat Conservation Plan Lands—

Exclusions Under Section 4(b)(2) of the 

Act 

We consider a current plan to provide 

adequate management or protection if it 

meets three criteria: (1) The plan is 

complete and provides the same or 

better level of protection from adverse 

modification or destruction than that 

provided through a consultation under 

section 7 of the Act; (2) there is a 

reasonable expectation that the 

conservation management strategies and 

actions will be implemented based on 

past practices, written guidance, or 

regulations; and (3) the plan provides 

conservation strategies and measures 

consistent with currently accepted 

principles of conservation biology. We 

believe that the Western Riverside 

County MSHCP fulfils these criteria, 

and we are considering the exclusion of 

non-Federal lands covered by this plan 

that provide for the conservation of 

Ceanothus ophiochilus from the final 

designation of critical habitat pursuant 

to section 4(b)(2) of the Act. We are 

requesting comments on the benefit to 

Fremontodendron mexicanum from the 

San Diego MSCP and the 1994 MOU 

with BLM; however, at this time we are 

not proposing the exclusion of any areas 

in the proposed critical habitat for F. 

mexicanum. 

Western Riverside County Multiple 

Species Habitat Conservation Plan 

The Western Riverside County 

MSHCP is a large-scale, multijurisdictional habitat conservation plan 

(HCP) that addresses 146 listed and 

unlisted ‘‘Covered Species,’’ including 

Ceanothus ophiochilus, within the 

1,260,000 ac (510,000 ha) Plan Area in 

western Riverside County. Participants 

in the MSHCP include 14 cities in 

western Riverside County; the County of 

Riverside, including the Riverside 

County Flood Control and Water 

Conservation Agency, Riverside County 

Transportation Commission, Riverside 

County Parks and Open Space District, 

and Riverside County Waste 

Department; California Department of 

Parks and Recreation; and the California 

Department of Transportation (Caltrans). 

The MSHCP was designed to establish 

a multi-species conservation program 

that minimizes and mitigates the 

expected loss of habitat and the 

incidental take of Covered Species. On 

June 22, 2004, the Service issued a 

single incidental take permit pursuant 

to section 10(a)(1)(B) of the Act to 22 

Permittees under the MSHCP for a 

period of 75 years. The Service granted 

the participating jurisdictions ‘‘take 

authorization’’ of listed species in 

exchange for their contribution to the 

assembly and management of the 

MSHCP Conservation Area. 

Collectively, the MSHCP Conservation 

Area includes MSHCP lands and 

additional Federal partner lands, and 

totals approximately 500,000 ac 

(202,343 ha). 

The MSHCP will establish 

approximately 153,000 ac (61,916 ha) of 

new conservation lands (Additional 

Reserve Lands) to complement the 

approximate 347,000 ac (140,426 ha) of 

existing natural and open space areas 

(e.g., State Parks, USFS, and County 

Park lands known as Public/QuasiPublic (PQP) Lands) in forming the 

MSHCP Conservation Area. The precise 

configuration of the 153,000 ac (61,916 

ha) of Additional Reserve Lands is not 

mapped or precisely identified in the 

MSHCP, but rather is based on textual 

descriptions within the bounds of a 

310,000-ac (125,453-ha) Criteria Area 

that is interpreted as implementation of 

the MSHCP proceeds. For Ceanothus 

ophiochilus, critical habitat subunits 1A 

(Vail Lake) and 1B (Agua Tibia 

Wilderness) are located entirely within 

the MSHCP Plan Area and are 

comprised of USFS and private lands. 

The private lands within these 

subunits are within the Criteria Area 

and are targeted for inclusion within the 

MSHCP Conservation Area as potential 

Additional Reserve Lands. Specific 

conservation objectives in the MSHCP 

for Ceanothus ophiochilus provide for 

conservation and management of at least 

13,290 ac (5,378 ha) of suitable 

chaparral habitat and at least three core 

locations of this species in the vicinity 

of Vail Lake and the Agua Tibia 

Wilderness. Additionally, the plan 

requires surveys for C. ophiochilus as 

part of the project review process for 

public and private projects where 


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suitable habitat is present within a 

defined boundary of the Criteria Area 

(see Criteria Area Species Survey Area 

Map, Figure 6–2 of the MSHCP, Volume 

I). For locations with positive survey 

results, 90 percent of those portions of 

the property that provide long-term 

conservation value for the species will 

be avoided until it is demonstrated that 

the conservation objectives for the 

species are met. We are currently only 

aware of three populations of C. 

ophiochilus in the MSHCP Conservation 

Area. The MSHCP recognizes these 

same three populations. The goal of the 

MSHCP is to conserve a minimum of 

three populations of C. ophiochilus. 

Although the specific location of 

individual target areas for this species 

has yet to be identified, we recognize 

that no other populations of the plant 

have been identified and agree that 

conservation of three populations of this 

plant through the survey requirements, 

avoidance and minimization measures, 

and management for C. ophiochilus (and 

its PCEs) exceed any conservation value 

provided as a result of any regulatory 

protections that may be afforded 

through a critical habitat designation 

over the three known populations. 

We propose to exclude approximately 

80 ac (33 ha) of non-Federal lands from 

the Ceanothus ophiochilus final critical 

habitat designation in subunits 1A and 

1B within the MSHCP Plan Area under 

section 4(b)(2) of the Act. These nonFederal lands are comprised of private 

lands to the west of Vail Lake 

(approximately 76 ac (31 ha)) (subunit 

1A) and private lands adjacent to the 

northern boundary of the Cleveland 

National Forest east of Woodchuck Road 

(approximately 4 ac (2 ha)) (subunit 1B). 

The USFS lands within these subunits 

are considered PQP lands under the 

MSHCP and as such are included within 

the overall 500,000 ac (202,343 ha) 

MSHCP Conservation Area. While these 

Federal lands are managed by the USFS 

and are an integral part of the overall 

conservation strategy of the MSHCP, the 

USFS is not a permittee under the 

section 10(a)(1)(B) permit. Therefore, we 

are not excluding USFS lands within 

subunit 1B based on the MSHCP. 

Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

We have reviewed and evaluated the 

proposed exclusion from the final 

designation of approximately 80 ac (33 

ha) of critical habitat on non-Federal 

lands within the MSHCP Plan Area, and 

have determined that the benefits of 

proposing to exclude these non-Federal 

lands in subunits 1A and 1B outweigh 

the benefits of including these lands. 

The PCEs required by Ceanothus 

ophiochilus will benefit by the 

conservation measures outlined in the 

MSHCP. In summary, these 

conservation measures include 

protecting and managing PCEs within 

the MSHCP Conservation Area, 

primarily through the protection of 

habitat from surface-disturbing 

activities; implementing specific 

management and monitoring practices 

to help ensure the conservation of C. 

ophiochilus and its PCEs in the Plan 

Area; maintaining the physical and 

ecological characteristics of occupied 

habitat; and conducting surveys and 

implementing other required procedures 

to ensure avoidance of impacts to at 

least 90 percent of suitable habitat areas 

determined important to the long-term 

conservation of C. ophiochilus within 

the Criteria Area. The specific area 

identified as Subunit 1A will be 

addressed under the MSHCP. These 

specific conservation actions, survey 

requirements, avoidance and 

minimization measures, and 

management for C. ophiochilus and its 

PCEs exceed any conservation value 

provided as a result of any regulatory 

protections that may be afforded 

through a critical habitat designation. 

The exclusion of these lands from 

critical habitat will also help preserve 

the partnerships that we have developed 

with the local jurisdictions and project 

proponents in the development of the 

MSHCP. The benefits of excluding these 

lands from critical habitat outweigh the 

minimal benefits of including these 

lands as critical habitat, including the 

educational benefits of critical habitat 

through informing the public of areas 

important for the long-term 

conservation of this species, because 

these educational benefits can still be 

accomplished from materials provided 

on our Web site. Further, many 

educational benefits of critical habitat 

designation will be achieved through 

the overall designation process and 

notice and public comment, and will 

occur whether or not these particular 

subunits are designated. 

Exclusion Will Not Result in Extinction 

of the Species 

We do not believe that the exclusion 

of 80 ac (33 ha) from the final 

designation of critical habitat for 

Ceanothus ophiochilus will result in the 

extinction of the taxon because the 

Western Riverside County MSHCP 

provides for the conservation of this 

species and its PCEs on all known 

occupied areas within the county, 

including areas that may be newly 

discovered occupied areas in the future. 

Importantly, as we stated in our 

biological opinion, while some loss of 

modeled habitat for C. ophiochilus is 

anticipated due to implementation of 

the MSHCP, we concluded that 

implementation of the plan will not 

jeopardize the continued existence of 

this species. 

The jeopardy standard of section 7 

and routine implementation of 

conservation measures through the 

section 7 process also provide 

assurances that the species will not go 

extinct. The proposed exclusion of 

critical habitat leaves these protections 

unchanged from those that would exist 

if the proposed excluded areas were 

designated as critical habitat. 

Economic Analysis 

An analysis of the potential economic 

impacts of proposing critical habitat for 

Ceanothus ophiochilus and 

Fremontodendron mexicanum is being 

prepared. We will announce the 

availability of the draft economic 

analysis as soon as it is completed, at 

which time we will seek public review 

and comment. At that time, copies of 

the draft economic analysis will be 

available for downloading from the 

Internet at http://www.fws.gov/carlsbad/ 

SpeciesInfo.htm or by contacting the 

Carlsbad Fish and Wildlife Office 

directly (see ADDRESSES section). 

Peer Review 

In accordance with our joint policy 

published in the Federal Register on 

July 1, 1994 (59 FR 34270), and based 

on our implementation of the Office of 

Management and Budget’s Final 

Information Quality Bulletin for Peer 

Review, dated December 16, 2004, we 

will seek the expert opinions of at least 

five appropriate and independent peer 

reviewers regarding the science in this 

proposed rule. The purpose of such 

review is to ensure that our critical 

habitat designation is based on 

scientifically sound data, assumptions, 

and analyses. We will send copies of 

this proposed rule to these peer 

reviewers 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 

revised designation of critical habitat. 

We will consider all comments and 

information received during the 

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, if 

requested. Requests for public hearings 


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must be made in writing at least 15 days 

prior to the close of the public comment 

period. We will schedule public 

hearings on this proposal, if any are 

requested, and announce the dates, 

times, and places of those hearings in 

the Federal Register and local 

newspapers at least 15 days prior to the 

first hearing. 

Clarity of the Rule 

Executive Order 12866 requires each 

agency to write regulations and notices 

that are easy to understand. We invite 

your comments on how to make this 

proposed rule easier to understand, 

including answers to questions such as 

the following: (1) Are the requirements 

in the proposed rule clearly stated? (2) 

Does the proposed rule contain 

technical jargon that interferes with the 

clarity? (3) Does the format of the 

proposed rule (grouping and order of 

the sections, use of headings, 

paragraphing, and so forth) aid or 

reduce its clarity? (4) Is the description 

of the notice in the SUPPLEMENTARY

INFORMATION section of the preamble 

helpful in understanding the proposed 

rule? (5) What else could we do to make 

this proposed rule easier to understand? 

Send a copy of any comments on how 

we could make this proposed rule easier 

to understand to: Office of Regulatory 

Affairs, Department of the Interior, 

Room 7229, 1849 C Street, NW., 

Washington, DC 20240. You may e-mail 

your comments to this address: 

Exsec@ios.doi.gov. 

Required Determinations 

Regulatory Planning and Review 

In accordance with Executive Order 

12866, this document is a significant 

rule in that it may raise novel legal and 

policy issues, but it is not anticipated to 

have an annual effect on the economy 

of $100 million or more or affect the 

economy in a material way. Due to the 

tight timeline for publication in the 

Federal Register, the Office of 

Management and Budget (OMB) has not 

formally reviewed this rule. We are 

preparing a draft economic analysis of 

this proposed action, which will be 

available for public comment, to 

determine the economic consequences 

of designating the specific area as 

critical habitat. This economic analysis 

also will be used to determine 

compliance with Executive Order 

12866, Regulatory Flexibility Act, Small 

Business Regulatory Enforcement 

Fairness Act, and Executive Order 

12630. 

Further, Executive Order 12866 

directs Federal Agencies promulgating 

regulations to evaluate regulatory 

alternatives (Office of Management and 

Budget, Circular A–4, September 17, 

2003). Pursuant to Circular A–4, once it 

has been determined that the Federal 

regulatory action is appropriate, the 

agency will need to consider alternative 

regulatory approaches. Since the 

determination of critical habitat is a 

statutory requirement under the Act, we 

must then evaluate alternative 

regulatory approaches, where feasible, 

when promulgating a designation of 

critical habitat. 

In developing our designations of 

critical habitat, we consider economic 

impacts, impacts to national security, 

and other relevant impacts under 

section 4(b)(2) of the Act. Based on the 

discretion allowable under this 

provision, we may exclude any 

particular area from the designation of 

critical habitat providing that the 

benefits of such exclusion outweigh the 

benefits of specifying the area as critical 

habitat and that such exclusion would 

not result in the extinction of the 

species. As such, we believe that the 

evaluation of the inclusion or exclusion 

of particular areas, or combination 

thereof, in a designation constitutes our 

regulatory alternative analysis. 

Within these areas, the types of 

Federal actions or authorized activities 

that we have identified as potential 

concerns are listed above in the section 

on Section 7 Consultation. The 

availability of the draft economic 

analysis will be announced in the 

Federal Register so that it is available 

for public review and comments. The 

draft economic analysis can be obtained 

from the internet Web site at http:// 

www.fws.gov/carlsbad/SpeciesInfo.htm 

or by contacting the Carlsbad Fish and 

Wildlife Office directly (see ADDRESSES

section). 

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

et seq.) 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq., as amended by the 

Small Business Regulatory Enforcement 

Fairness Act (SBREFA) of 1996), 

whenever an agency is required to 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effects of the rule on small 

entities (i.e., small businesses, small 

organizations, and small government 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of the agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. The SBREFA amended the 

Regulatory Flexibility Act (RFA) to 

require Federal agencies to provide a 

statement of the factual basis for 

certifying that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

At this time, the Service lacks the 

available economic information 

necessary to provide an adequate factual 

basis for the required RFA finding. 

Therefore, the RFA finding is deferred 

until completion of the draft economic 

analysis prepared pursuant to section 

4(b)(2) of the ESA and E.O. 12866. This 

draft economic analysis will provide the 

required factual basis for the RFA 

finding. Upon completion of the draft 

economic analysis, the Service will 

publish a notice of availability of the 

draft economic analysis of the proposed 

designation and reopen the public 

comment period for the proposed 

designation. The Service will include 

with the notice of availability, as 

appropriate, an initial regulatory 

flexibility analysis or a certification that 

the rule will not have a significant 

economic impact on a substantial 

number of small entities accompanied 

by the factual basis for that 

determination. The Service has 

concluded that deferring the RFA 

finding until completion of the draft 

economic analysis is necessary to meet 

the purposes and requirements of the 

RFA. Deferring the RFA finding in this 

manner will ensure that the Service 

makes a sufficiently informed 

determination based on adequate 

economic information and provides the 

necessary opportunity for public 

comment. 

Executive Order 13211 

On May 18, 2001, the President issued 

an Executive Order 13211 on 

regulations that significantly affect 

energy supply, distribution, and use. 

Executive Order 13211 requires agencies 

to prepare Statements of Energy Effects 

when undertaking certain actions. This 

proposed rule to designate critical 

habitat for Ceanothus ophiochilus and 

Fremontodendron mexicanum is 

considered to be a significant regulatory 

action under Executive Order 12866 in 

that it may raise novel legal and policy 

issues. However, based on the extent of 

specific areas being proposed for 

designation, it is not expected to 

significantly affect energy supplies, 

distribution, or use. Therefore, we do 

not believe that this action is not a 

significant energy action and no 

Statement of Energy Effects is required. 

We will, however, further evaluate this 

issue as we conduct our economic 

analysis and revise this assessment if 

appropriate. 


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Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501), 

the Service makes the following 

findings: 

(a) This rule will not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute or regulation that would impose 

an enforceable duty upon State, local, 

tribal governments, or the private sector 

and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’

These terms are defined in 2 U.S.C. 

658(5)–(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or tribal 

governments,’’ with two exceptions. It 

excludes ‘‘a condition of Federal 

assistance.’’ It also excludes ‘‘a duty 

arising from participation in a voluntary 

Federal program,’’ unless the regulation 

‘‘relates to a then-existing Federal 

program under which $500,000,000 or 

more is provided annually to State, 

local, and tribal governments under 

entitlement authority,’’ if the provision 

would ‘‘increase the stringency of 

conditions of assistance’’ or ‘‘place caps 

upon, or otherwise decrease, the Federal 

Government’s responsibility to provide 

funding,’’ and the State, local, or tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. At the time of enactment, 

these entitlement programs were: 

Medicaid; AFDC work programs; Child 

Nutrition; Food Stamps; Social Services 

Block Grants; Vocational Rehabilitation 

State Grants; Foster Care, Adoption 

Assistance, and Independent Living; 

Family Support Welfare Services; and 

Child Support Enforcement. ‘‘Federal 

private sector mandate’’ includes a 

regulation that ‘‘would impose an 

enforceable duty upon the private 

sector, except (i) A condition of Federal 

assistance or (ii) a duty arising from 

participation in a voluntary Federal 

program.’’

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. While nonFederal entities that receive Federal 

funding, assistance, or permits, or that 

otherwise require approval or 

authorization from a Federal agency for 

an action, may be indirectly impacted 

by the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply; nor would critical habitat 

shift the costs of the large entitlement 

programs listed above on to State 

governments. 

(b) We do not anticipate that this rule 

will significantly or uniquely affect 

small governments 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. As such, a Small 

Government Agency Plan is not 

required. We will, however, further 

evaluate this issue as we conduct our 

economic analysis and revise this 

assessment if appropriate. 

Federalism 

In accordance with Executive Order 

13132, the rule does not have significant 

Federalism effects. A Federalism 

assessment is not required. In keeping 

with DOI and Department of Commerce 

policy, we coordinated development 

and requested information on this 

proposed critical habitat designation 

with appropriate State resource agencies 

in California. The designation of critical 

habitat in areas currently occupied by 

Ceanothus ophiochilus and 

Fremontodendron mexicanum 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 

that contain the features essential to the 

conservation of the species are more 

clearly defined, and the primary 

constituent elements of the habitat 

necessary to the conservation 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). 

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 

that it meets the requirements of 

sections 3(a) and 3(b)(2) of the Order. 

We have proposed designating critical 

habitat in accordance with the 

provisions of the Endangered Species 

Act. This proposed 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 

Ceanothus ophiochilus and 

Fremontodendron mexicanum. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

Reduction Act. This rule will not 

impose recordkeeping or reporting 

requirements on State or local 

governments, individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act 

(NEPA) 

It is our position that, outside the 

Tenth Circuit, we do not need to 

prepare environmental analyses as 

defined by NEPA in connection with 

designating critical habitat under the 

Endangered Species Act of 1973, as 

amended. We published a notice 

outlining our reasons for this 

determination in the Federal Register 

on October 25, 1983 (48 FR 49244). This 

assertion was upheld in the courts of the 

Ninth Circuit (Douglas County v. 

Babbitt, 48 F.3d 1495 (9th Cir. Ore. 

1995), cert. denied 116 S. Ct. 698 (1996). 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951), Executive 

Order 13175, and the Department of the 

Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. We 

have determined that no essential 

habitat for either Ceanothus ophiochilus 

or Fremontodendron mexicanum exists 

on tribal lands. Therefore, critical 

habitat for C. ophiochilus and F. 

mexicanum has not been proposed on 

Tribal lands. 

References Cited 

A complete list of all references cited 

in this rulemaking is available upon 

request from the Field Supervisor, 

Carlsbad Fish and Wildlife Office (see 

ADDRESSES section). 


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Author(s) 

The primary author of this package is 

the staff of the Carlsbad Fish and 

Wildlife Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Proposed Regulation Promulgation 

Accordingly, we propose to amend 

part 17, subchapter B of chapter I, title 

50 of the Code of Federal Regulations, 

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 § 17.12(h), revise the entry for 

‘‘Ceanothus ophiochilus’’ and the entry 

for ‘‘Fremontodendron mexicanum’’

under ‘‘FLOWERING PLANTS’’ to read 

as follows: 

§ 17.12 Endangered and threatened plants. 

* * * * * 

(h) * * * 

Species 

Historic range Family Status When listed Critical habitat 

Special 

rules Scientific name Common name 

FLOWERING 

PLANTS 

* * * * * * * 

Ceanothus 

ophiochilus.

Vail Lake ceanothus U.S.A. (CA) ............. Rhamnaceae .......... T 648 17.96(a) NA 

* * * * * * * 

Fremontodendron 

mexicanum.

Mexican flannelbush U.S.A. (CA), Mexico Sterculiaceae .......... E 648 17.96(a) NA 

* * * * * * * 

3. Amend § 17.96(a), by adding an 

entry for Ceanothus ophiochilus (Vail 

Lake ceanothus) in alphabetical order 

under family Rhamnaceae and an entry 

for Fremontodendron mexicanum 

(Mexican flannelbush) in alphabetical 

order under family Sterculiaceae, to 

read as follows: 

§ 17.96 Critical habitat—plants. 

(a) Flowering Plants. 

* * * * * 

Family Rhamnaceae: Ceanothus 

ophiochilus (Vail Lake ceanothus) 

(1) Critical habitat units are depicted 

for Riverside County, California on the 

maps below. 

(2) The primary constituent elements 

(PCEs) of critical habitat for Ceanothus 

ophiochilus are the habitat components 

that provide: 

(i) Flat to gently sloping north to 

northeast facing ridge tops with slopes 

in the range of 0 to 40 percent slope that 

provide the appropriate solar exposure 

for seedling establishment and growth. 

(ii) Soils formed from metavolcanic 

and ultra-basic parent materials and 

deeply weathered gabbro or pyroxeniterich outcrops that provide nutrients and 

space for growth and reproduction. 

Specifically in the areas that Ceanothus 

ophiochilus is found, the soils are: 

(A) Ramona, Cienaba, Las Posas, and 

Vista series in the Agua Tibia 

Wilderness; and 

(B) Cajalco series in the vicinity of 

Vail Lake; 

(iii) Chamise chaparral or mixed 

chamise-ceanothus-arctostaphylos 

chaparral at elevations of 2,000 ft to 

3,000 ft (610 m to 914 m) that provide 

the appropriate canopy cover and 

elevation requirements for growth and 

reproduction. 

(3) Critical habitat does not include 

man-made structures existing on the 

effective date of this rule and not 

containing one or more of the primary 

constituent elements, such as buildings, 

aqueducts, airports, and roads, and the 

land on which such structures are 

located. 

(4) Data layers defining map units 

were created on a base of USGS 

1:24,0000 maps, and critical habitat 

units were then mapped using Universal 

Transverse Mercator (UTM) coordinates. 

(5) Unit 1. 

(i) Subunit 1A for Ceanothus 

ophiochilus, Vail Lake Subunit, 

Riverside County, California. From 

USGS 1:24,000 quadrangles Pechanga 

and Vail Lake, lands bounded by the 

following UTM NAD27 coordinates (E, 

N): 499944, 3705490; 500174, 3705450; 

500339, 3705344; 500489, 3705188; 

500546, 3705102; 500615, 3704967; 

500677, 3704920; 500682, 3704828; 

500626, 3704765; 500519, 3704736; 

500004, 3705012; thence returning to 

499944, 3705490. 

(ii) Map depicting Subunit 1A is 

located at paragraph (5)(iv) of this entry. 

(iii) Subunit 1B for Ceanothus 

ophiochilus, Agua Tibia Subunit, 

Riverside County, California. From 

USGS 1:24,000 quadrangles Pechanga 

and Vail Lake, lands bounded by the 

following UTM NAD27 coordinates (E, 

N): 499902, 3701154; 499909, 3701222; 

499950, 3701238; 500022, 3701235; 

500060, 3701218; 500091, 3701184; 

500127, 3701138; 500158, 3701092; 

500191, 3701048; 500226, 3701010; 

500247, 3700998; 500262, 3700990; 

500273, 3700981; 500294, 3700965; 

500326, 3700909; 500351, 3700872; 

500353, 3700869; 500362, 3700855; 

500375, 3700824; 500398, 3700735; 

500400, 3700646; 500370, 3700546; 

500308, 3700359; 500293, 3700272; 

500173, 3700102; 500057, 3699889; 

500008, 3699730; 499990, 3699595; 

499988, 3699460; 500022, 3699376; 

500045, 3699326; 500113, 3699213; 

500179, 3699040; 500199, 3698902; 

500173, 3698801; 500010, 3698618; 

499966, 3698566; 499920, 3698544; 

499823, 3698518; 499757, 3698516; 

499704, 3698537; 499671, 3698570; 

499655, 3698612; 499671, 3698670; 

499783, 3698843; 499834, 3698968; 

499840, 3699020; 499840, 3699090; 

499819, 3699185; 499755, 3699338; 

499731, 3699474; 499757, 3699750; 

499838, 3699993; 499974, 3700214; 

500037, 3700349; 500055, 3700453; 

500063, 3700594; 500033, 3700813; 

499984, 3700976; 499924, 3701105; 

thence returning to 499902, 3701154. 

(iv) Map of Subunits 1A and 1B (Map 

1) follows. 

BILLING CODE 4310–55–P 


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Family Sterculiaceae: Fremontodendron 

mexicanum (Mexican flannelbush) 

(1) Critical habitat units are depicted 

for San Diego County, California, on the 

maps below. 

(2) The primary constituent elements 

of critical habitat for Fremontodendron 

mexicanum are the habitat components 

that provide: 

(i) Alluvial terraces, benches, and 

associated slopes within 500 feet (152 

meters) of streams, creeks, and 

ephemeral drainages where water flows 

primarily after peak seasonal rains with 

a gradient ranging from 3 to 7 percent; 

and stabilized north- to east-facing 

slopes associated with steep (9 to 70 

percent) slopes and canyons that 

provide space for growth and 

reproduction. 

(ii) Silty loam soils derived from 

metavolcanic and metabasic bedrock, 

mapped as San Miguel—Exchequer 

Association soil series that provides the 

nutrients and substrate with adequate 

drainage to support seedling 

establishment and growth. 

(iii) Open Cupressus forbesii and 

Platanus racemosa stands at elevations 

of 900 ft (274 m) to 3,000 ft (914 m) 

within a matrix of chaparral (such as 

Dendromecon rigida ssp. rigida and 

Malosma laurina) and riparian 

vegetation that provides adequate space 

for growth and reproduction. 

(3) Critical habitat does not include 

man made structures existing on the 

effective date of this rule and not 

containing one or more of the primary 

constituent elements, such as buildings, 

aqueducts, airports, and roads, and the 

land on which such structures are 

located. 

(4) Data layers defining map units 

were created on a base of USGS 

1:24,0000 maps, and critical habitat 

units were then mapped using Universal 

Transverse Mercator (UTM) coordinates. 

(5) Unit 1. 

(i) Subunit 1A for Fremontodendron 

mexicanum, Cedar Canyon Subunit, San 

Diego County, California. From USGS 

1:24,000 quadrangles Dulzura and Otay 

Mountain, lands bounded by the 

following UTM NAD27 coordinates (E, 

N): 515014, 3611487; 515155, 3611552; 

515695, 3611495; 515848, 3611474; 

516142, 3611376; 516372, 3611063; 

516368, 3610565; 516091, 3610192; 

516251, 3609616; 516229, 3608802; 

516080, 3608793; 516038, 3608958; 

516013, 3609134; 516008, 3609701; 

515493, 3609581; 515407, 3609585; 

515418, 3609710; 515497, 3609804; 

515663, 3609889; 515878, 3609887; 

515904, 3610258; 515952, 3610432; 

515921, 3610608; 516125, 3610698; 

515989, 3611007; 515889, 3611230; 

515567, 3611277; 515159, 3611261; 

515064, 3611374; thence returning to 

515014, 3611487. 

(ii) Map depicting Subunit 1A is 

located at paragraph (5)(iv) of this entry. 

(iii) Subunit 1B for Fremontodendron 

mexicanum, Little Cedar Canyon 

Subunit, San Diego County, California. 

From USGS 1:24,000 quadrangles 

Dulzura and Otay Mountain, lands 

bounded by the following UTM NAD27 

coordinates (E, N): 512964, 3610810; 

513099, 3610671; 513104, 3609924; 

513252, 3609684; 513232, 3609584; 

513344, 3609302; 513278, 3609139; 

513174, 3609122; 512911, 3609699; 

512854, 3610125; 512821, 3610402; 

512834, 3610662; thence returning to 

512964, 3610810. 

(iv) Map of Subunits 1A and 1B (Map 

2) follows. 


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* * * * * 

Dated: September 18, 2006. 

David M. Verhey, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. 06–8189 Filed 10–2–06; 8:45 am] 

BILLING CODE 4310–55–C 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

Endangered and Threatened Wildlife 

and Plants; 90-Day Finding on a 

Petition to Delist the Plymouth 

Redbelly Turtle (Pseudemys 

rubriventris bangsi) 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notice of 90-day petition 

finding and initiation of status review. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce a 

90-day finding on a petition to remove 

the Plymouth redbelly turtle 

(Pseudemys rubriventris bangsi), now 

referred to as the Plymouth (or northern) 

red-bellied cooter (P. rubriventris), from 

the Federal List of Threatened and 

Endangered Wildlife under the 

Endangered Species Act of 1973, as 

amended (Act). We find that the petition 

and additional information in our files 

presents substantial information 

indicating that delisting the Plymouth 

red-bellied cooter may be warranted, 

and we are therefore initiating a status 

review. To assist us in ensuring that the 

review is comprehensive, we are 

soliciting information and data 

regarding this species. 

DATES: The administrative finding 

announced in this document was made 

on October 3, 2006. To be considered in 

the 12-month finding for this petition, 

comments and information should be 

submitted to us by December 4, 2006. 

ADDRESSES: Data, information, 

comments, or questions concerning this 

petition and our finding should be 

submitted to the Field Supervisor 

(Attention: Endangered Species), New 

England Field Office, 70 Commercial 

Street, Suite 300, Concord, New 

Hampshire 03301. The petition, 

administrative record, supporting data, 

and comments will be available for 

public inspection, by appointment, 

during normal business hours at the 

above address. 

FOR FURTHER INFORMATION CONTACT: 

Michael J. Amaral, Sr. Endangered 

Species Specialist, at the New England 

Field Office (see ADDRESSES above), or at 

603–223–2541. 

SUPPLEMENTARY INFORMATION: 

Public Information Solicited 

When we make a finding that 

substantial information exists to 

indicate that listing or delisting a 

species may be warranted, we are 

required to promptly commence a 

review of the status of the species. We 

intend that any final action resulting 

from this status review will be as 

accurate and effective as possible. 

Therefore, we request comments or 

suggestions from the public, other 

concerned governmental agencies, 

Native American Tribes, the scientific 

community, industry, or any other 

interested parties. We would be 

particularly interested in any data 

indicating that the Plymouth red-bellied 

cooter may qualify for protection under 

the Act as a distinct population segment 

per standards as described in the Policy 

Regarding the Recognition of Distinct 

Vertebrate Population Segments Under 

the Endangered Species Act (February 7, 

1996; 61 FR pages 4722) or as part of 

some larger taxonomic entity that is 

threatened or endangered. We are 

opening a 60-day public comment 

period (see DATES) to allow all interested 

parties an opportunity to provide 

information on the status of the 

Plymouth red-bellied cooter throughout 

its range, including information on the 

species’ biology and ecology; its 

genetics and taxonomic classification; 

the historic and current abundance and 

distribution of the Plymouth, 

Massachusetts population; ongoing 

conservation measures for the species 

and its habitat; and the threats facing 

the Plymouth red-bellied cooter in 

relation to the five listing factors (as 

defined in section 4(a)(1) of the Act). 

We will base our 12-month finding on 

a review of the best scientific and 

commercial information available, 

including all information received 

during the public comment period. If 

you wish to provide comments you may 

submit your comments and materials 

concerning this finding to the Field 

Supervisor, New England Field Office 

(see ADDRESSES section). Please note 

that comments merely stating support or 

opposition to the actions under 

consideration without providing 

supporting information, although noted, 

will not be considered in making a 

determination, as section 4(b)(1)(A) of 

the Act directs that determinations as to 

whether any species is a threatened or 

endangered species shall be made 

‘‘solely on the basis of the best scientific 

and commercial data available.’’ At the 

conclusion of the status review, we will 

issue the 12-month finding on the 

petition, as provided in section 

4(b)(3)(B) of the Act. 

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 addresses from 

the record, which we will honor to the 

extent allowable by law. There also may 

be circumstances in which we would 

withhold from the record a respondent’s 

identity, as allowable by law. If you 

wish us to withhold your name and/or 

address, you must state this 

prominently at the beginning of your 

comment, but you should be aware that 

the Service may be required to disclose 

your name and address pursuant to the 

Freedom of Information Act. 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. 

All comments and materials received 

will be available for public inspection, 

by appointment, during normal business 

hours at our New England Field Office 

(see ADDRESSES). 

Background 

Section 4(b)(3)(A) of the Endangered 

Species Act of 1973, as amended (Act) 

(16 U.S.C. 1531 et seq.), requires that we 

make a finding on whether a petition to 

list, delist, or reclassify a species 

presents substantial scientific or 

commercial information to demonstrate 

that the petitioned action may be 

warranted. To the maximum extent 

practicable, we are to make this finding 

within 90 days of the receipt of the 

petition and publish a notice of the 

finding promptly in the Federal 

Register. 

Our standard for substantial scientific 

information within the Code of Federal 

Regulations (CFR) with regard to a 90- 

day petition finding is ‘‘that amount of 

information that would lead a 

reasonable person to believe that the 

measure proposed in the petition may 

be warranted’’ (50 CFR 424.14(b)). If we 

find that substantial information was 

presented, we are required to promptly 

commence a review of the status of the 

involved species. After completing the 

status review, we will issue a 12-month 

finding determining whether delisting 

or an alternative action is warranted. 

The factors for listing, delisting, or 

reclassifying species are described at 50 

CFR 424.11. We may delist a species 


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