56094 Federal Register / Vol. 71, No. 186 / Tuesday, September 26, 2006 / Proposed Rules 

* * * * * 

Dated: September 19, 2006. 

David M. Verhey, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. 06–8191 Filed 9–25–06; 8:45 am] 

BILLING CODE 4310–55–C 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AU77 

Endangered and Threatened Wildlife 

and Plants; Prudency Determination 

for the Designation of Critical Habitat 

for Trichostema austromontanum ssp. 

compactum 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notice of proposed finding. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), have 

reconsidered whether designating 

critical habitat for Trichostema 

austromontanum ssp. compactum, a 

plant, is prudent. This taxon was listed 

as threatened under the Endangered 

Species Act of 1973, as amended (Act), 

on September 14, 1998; at that time we 

determined that designation of critical 

habitat was not prudent because 

designation would increase the degree 

of threat to the taxon and would not 

benefit the taxon. As a consequence of 

a settlement agreement we are 

withdrawing our previous not prudent 

finding. Further, on the basis of our 

review and evaluation of the best 

scientific and commercial information 

available, we believe that designation of 

critical habitat continues to be not 

prudent for T. a. ssp. compactum. As a 

result, we are proposing a new ‘‘not 

prudent’’ determination for T. a. ssp. 

compactum. 

DATES: We will accept comments from 

all interested parties until November 27, 

2006. 

ADDRESSES: If you wish to comment on 

the proposed finding, you may submit 

your comments and materials identified 

by RIN 1018–AU77, by any of the 

following methods: 

(1) E-mail: 

fw8cfwocomments@fws.gov. Include 

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

(2) Fax: 760/431–9624. 

(3) Mail: Jim Bartel, Field Supervisor, 

Carlsbad Fish and Wildlife Office, 6010 

Hidden Valley Road, Carlsbad, CA 

92011. 

(4) Hand Delivery/Courier: You may 

hand-deliver written documents to our 

office (see ADDRESSES). 

(5) Federal Rulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

FOR FURTHER INFORMATION CONTACT: Jim 

Bartel, Field Supervisor, Carlsbad Fish 

and Wildlife Office, telephone, 760/ 

431–9440; facsimile, 760/431–9624. 

SUPPLEMENTARY INFORMATION: 

Public Comments Solicited 

We intend that any final action 

resulting from this finding 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 finding are hereby solicited. 

Comments particularly are sought 

concerning: 

(1) Reasons that designation of critical 

habitat may or may not be prudent for 

T. a. ssp. compactum; 

(2) Specific information on 

management activities for this taxon and 

how those activities do or do not 

address threats identified in the listing 

rule; 

(3) The possible risks and benefits of 

designating critical habitat for T. a. ssp. 

compactum; and 

(4) Ways in which we could improve 

or modify this finding to increase public 

participation and understanding. 

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 in ASCII file 

format and avoid the use of special 

characters or any form of encryption. 

Please also include ‘‘Attn: RIN 1018–

AU77’’ in your e-mail subject header 

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. 

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). 

Background 

It is our intent to discuss only those 

topics directly relevant to the not 

prudent critical habitat determination. 

For more information on biology and 

ecology of Trichostema 

austromontanum ssp. compactum, refer 

to the final rule listing this taxon as 

threatened published in the Federal 

Register on September 14, 1998 (63 FR 

49006). 

Taxonomy and Description 

Trichostema austromontanum ssp. 

compactum, a member of the Lamiaceae 

(mint family), was described by F. 

Harlan Lewis (1945) based on 

specimens collected in 1941 by M. L. 

Hilend in Riverside County, California. 

The taxon occurs only on the 

northwestern margin of a single vernal 

pool (Bauder 1999, p. 13). T. a. ssp. 

compactum is a compact, soft-villous 

(with long, shaggy hairs) annual plant, 

approximately 4 inches (10 centimeters) 

tall, with short internodes (stem 

segments between leaves) (Lewis 1945, 

p. 284–386, Lewis 1993, p. 732), elliptic 

leaves, and blue flowers in a five-lobed 

corolla. The two stamens are blue. The 

fruit consists of four smooth, basally 

joined nutlets. This taxon flowers in 

July and August. 

Threats 

In the 1998 final listing rule, we 

stated that trampling and low numbers 

(small population size) threatened 

Trichostema austromontanum ssp. 

compactum (63 FR 49006). At the time 

of listing there were reports of on-going 

impacts caused by trampling associated 

with hikers and horses. It was observed 

that trampling by horses crushed plants 

and also created depressions that 

retained water where seeds and adult 

plants of T. a. ssp. compactum drown 

(Hamilton 1991, p 2, 22; Hamilton 

1996). Since listing, the California 


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Department of Parks and Recreation 

(CDPR), which manages the area, has 

taken several actions to minimize the 

threat of trampling to this taxon (see the 

‘‘Prudency Determination’’ section for a 

detailed discussion). 

Regarding the threat posed by low 

numbers, the Service concluded in the 

final listing rule that the limited number 

of individual plants and the extremely 

localized range of Trichostema 

austromontanum ssp. compactum, 

make this taxon more susceptible to 

single disturbance events; such as 

trampling during the flowering season 

(63 FR 49006). According to Noss et al. 

(1997), a species distributed across 

multiple sites within its native range is 

less susceptible to extinction than 

another similar species confined to far 

fewer sites. As a result, being restricted 

to a single, small location clearly makes 

the species more vulnerable to 

stochastic (i.e., random, less 

predictable) threats. Using the three 

categories described by Noss et al. 

(1997), these threats would be (1) 

genetic (primarily loss of genetic 

variation), (2) demographic (principally 

extremely small population size), and 

(3) environmental (vernal pool changes 

and unknown stochastic events). 

Previous Federal Actions 

Trichostema austromontanum ssp. 

compactum was federally listed as 

threatened on September 14, 1998 (63 

FR 49006). This taxon is not listed by 

the State of California. At the time of 

Federal listing, we determined that the 

designation of critical habitat was not 

prudent because the designation would 

likely encourage more visitors to the 

geographic location containing the 

single known occurrence, and would 

undermine attempts by the CDPR to 

protect the site. We determined that 

critical habitat designation would, 

therefore, increase the degree of threat 

to the taxon as well as provide no 

benefit for the taxon. At the time of 

listing, CDPR had initiated actions to 

decrease the public notoriety of the 

location and visibility of this taxon and 

accessibility by the public to the 

geographic location containing the 

single occurrence in an effort to 

decrease threats to this taxon. We 

believed a critical habitat designation 

would increase notoriety of the location 

and visibility of the taxon, the opposite 

of what the CDPR was trying to 

accomplish. The increased notoriety 

and visibility would potentially increase 

visitorship to the area, thus increasing 

the threat of trampling to the taxon. 

On September 13, 2004, the Center for 

Biological Diversity (CBD) and 

California Native Plant Society (CNPS) 

challenged our failure to designate 

critical habitat for this taxon and four 

other plant species (Center for Biological 

Diversity, et al. v. Gale Norton, 

Secretary of the Department of the 

Interior, et al., ED CV–04–1150 RT 

(SGLx) C. D. California). The CBD and 

CNPS alleged that the Service failed to 

provide evidence in the final listing rule 

supporting its finding that critical 

habitat would not be beneficial to the 

species and establishing how the 

publication of critical habitat maps 

would increase the threat to the species. 

Without reaching any conclusions on 

the merits of the previous decision, the 

Service agreed to withdraw its previous 

not prudent finding and publish a 

proposed designation of critical habitat, 

if prudent, on or before September 20, 

2006, and a final rule by September 20, 

2007. This withdrawal of the previous 

not prudent finding and new proposed 

prudency determination complies with 

that settlement agreement. 

Prudency Determination 

Section 4(a)(3) of the Act and 

implementing regulations (50 CFR 

424.12) require that, to the maximum 

extent prudent and determinable, we 

designate critical habitat at the time a 

species is determined to be endangered 

or threatened. Regulations under 50 CFR 

424.12(a)(1) state that the designation of 

critical habitat is not prudent when one 

or both of the following situations exist: 

(1) The species is threatened by taking 

or other activity and the identification 

of critical habitat can be expected to 

increase the degree of threat to the 

species; or (2) such designation of 

critical habitat would not be beneficial 

to the species. In our September 14, 

1998 final rule (63 FR 49006), we 

determined that a designation of critical 

habitat could increase the degree of 

threat to Trichostema austromontanum 

ssp. compactum, and that such 

designation would also not be beneficial 

to the taxon. 

In the final listing rule (63 FR 49019) 

we stated: 

(1) Trichostema austromontanum ssp. 

compactum occurs only in a wilderness 

area on State [CDPR] lands with little 

potential for Federal involvement. 

Trails, signage, map notations, and 

references to the habitat area have been 

removed by the State to reduce impacts 

to this highly localized taxon; 

(2) Designation of critical habitat 

would have little benefit to this taxon 

and would not increase the commitment 

or management efforts of the State; and 

(3) Designation of critical habitat 

likely would be detrimental to this 

taxon because publishing maps and 

descriptions of the exact locality 

identifies the site as a unique area. Such 

a distinction may encourage recreational 

use of the area and negatively impact 

the taxon. 

Pursuant to the Court’s April 14, 

2005, stipulated settlement agreement 

and order, we are hereby withdrawing 

our previous ‘‘not prudent’’

determination. Consistent with the 

requirements of the Act and our 

aforementioned agreement and order, 

we are simultaneously making a new 

proposed determination of ‘‘not 

prudent’’ for Trichostema 

austromontanum ssp. compactum. An 

explanation of this proposed ‘‘not 

prudent’’ determination follows. We 

encourage the public to comment on 

this proposed determination as 

described in the ‘‘Public Comments 

Solicited’’ section above. 

Trichostema austromontanum ssp. 

compactum was listed based on threats 

of trampling associated with 

recreational activities and low numbers 

of individual plants. Prior to the CDPR 

taking steps to minimize the visibility of 

the sensitive habitat that supports T. a. 

ssp. compactum there was a clearly 

marked trail to the location. The area 

was used for many different types of 

recreational uses. These activities 

impacted the sensitive vegetation in the 

area by trampling live plants and 

creating multiple footprints in the wet 

soil around the margin of the vernal 

pool, further impacting habitat through 

soil compaction and alteration of 

hydrology (Hamilton 1983, 63 FR 

49006). Since the taxon’s listing, the 

CDPR has continued to implement 

management actions designed to reduce 

the visitation to this area. As stated in 

the 1998 listing rule, they have removed 

reference to the area from their trail 

maps and signs, and removed all 

markers for trails to this area in order to 

reduce recreational use. Although the 

taxon’s location was in the public 

domain in the past, the exact location is 

no longer easily accessible to the public 

via normal information sources (e.g., 

internet). In contrast, the public notice 

requirements of the Act, including 

publication of site location information 

and a map in the Federal Register, is 

intended to make information readily 

accessible to the public in a form that 

is easy to understand. 

The CDPR has continued their efforts 

to address the threats from trampling by 

further excluding recreational users 

from the area. In 2000, CDPR erected a 

barrier on the trail to the area to exclude 

horses and pack animals from this 

sensitive area. In 2002, they designated 

the vernal pool and the surrounding 

area as a Natural Preserve (CDPR 2002 

p. 62). A Natural Preserve is a state 


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designation that places resource 

protection within the area over 

recreational use and, therefore, 

measures can be taken to ensure the 

long-term survival of T. a. ssp. 

compactum. Recent visits to the site 

suggest that there has been a decrease in 

equestrian use of the area as a result of 

the barrier installed along the trail 

(Wallace 2003, 2005; Snapp-Cook 2006). 

As part of the process of determining 

the prudency of designating critical 

habitat for Trichostema 

austromontanum ssp. compactum, we 

met with CDPR to discuss management 

activities now being conducted for this 

taxon. The current and past actions that 

they have initiated, partially due to the 

listing of this taxon, appear to be 

adequate to protect and maintain the 

plant’s habitat. On a 2006 field visit to 

the site, we only found signs of minimal 

human use at the vernal pool reflected 

in a worn trail passing the upper 

boundary of the vernal pool; however, 

we did not see evidence of higher 

impact activities such as trash or fire 

pits that would be associated with 

camping, nor hoof prints or horse 

manure that would be associated with 

equestrian use (Snapp-Cook 2006). This 

contrasted with the condition of the site 

prior to the CDPR implementing 

management actions for this plant and 

the condition of the site described at the 

time of listing (Hamilton 1983; 63 FR 

49006). We were able to observe T. a. 

ssp. compactum around the margins of 

the vernal pool and none of the plants 

showed any signs of damage from 

trampling. 

To support the effectiveness of the 

management measures that CDPR has 

put in place, a formal study to monitor 

the recreation use of the area is needed. 

The Service has recently helped the 

State of California to secure funding to 

conduct a study to determine the 

condition of the population and the 

effectiveness of the management by 

CDPR. Funding has also been secured to 

survey and sign the legal boundaries of 

the established Natural Preserve so the 

regulations of the Natural Preserve can 

be enforced. In addition to these two 

tasks, a seed banking program that 

includes collection of seeds, a 

conservation strategy, and monitoring, 

will be established. Through this 

funding, we are committed to work with 

CDPR, California Department of Fish 

and Game, the California Native Plant 

Society and Rancho Santa Ana Botanic 

Garden to establish a long-term 

conservation strategy for T. a. ssp. 

compactum. These actions should 

provide additional protection for this 

taxon and help to conserve this plant. 

While the primary threat to 

Trichostema austromontanum ssp. 

compactum, trampling, appears to have 

been minimized, little information 

exists on the status of the taxon overall. 

To obtain all available information on 

this taxon, we initiated a 5-year status 

review. We published a notice 

announcing the initiation of this review 

for T. a. ssp. compactum and the 

opening of the first 60-day comment 

period in the Federal Register on July 

7, 2005 (70 FR 39327). We published 

another notice reopening the comment 

period for an additional 60 days in the 

Federal Register on November 3, 2005 

(70 FR 66842). As part of our review, we 

evaluated the federally-listed status of 

this taxon based on the threats to the 

plant and its habitat and recommended 

that no change be made to the listing 

status until a few specific conservation 

actions underway by the CDPR have 

been concluded. The completed 5-year 

review for this taxon is available upon 

request from the Field Supervisor, 

Carlsbad Fish and Wildlife Office (see 

ADDRESSES section). 

Increased Threat to the Species 

The process of designating critical 

habitat would be expected to increase 

human threats to Trichostema 

austromontanum ssp. compactum by 

bringing publicity to this plant and its 

localized habitat with the publication of 

maps likely resulting in an increase in 

visitation to the site. We generally notify 

all major regional newspapers, local, 

State, and Federal agencies and other 

interested parties, including all 

Congressional offices in the local area 

when designating critical habitat to raise 

the visibility of our actions and involve 

the public. These actions would 

undermine the conservation efforts 

taken by the CDPR to reduce the threat 

of trampling to this taxon. For example, 

the designation of critical habitat often 

generates interest in a species and 

inspires people to study the species and 

visit the habitat. In the case of T. a. ssp. 

compactum, it takes careful and 

detailed training to recognize this taxon. 

The plant is small and blends in with 

other low-lying species on the ground. 

It is unlikely that even informed hikers 

could discern the plant’s presence in 

particular areas. In addition, as 

discussed above, this area has been 

designated as a Natural Preserve, and 

CDPR manages the area to minimize 

recreational use. There are no signed 

trails or observation areas in place that 

could allow for interested persons to 

observe the plant from a non-intrusive 

location. Thus, even well-meaning and 

informed visitors may cause significant 

damage by inadvertently trampling 

these tiny plants and adversely affecting 

the habitat. 

The District Superintendent of the 

Inland Empire District of California 

State Parks has expressed concern to the 

Service that the critical habitat 

designation process may place this plant 

at increased risk via increased visitation 

(Watts 2006). Our publication of a 

critical habitat map identifying the 

location and subsequent publicity of 

this action would be counter to CDPR’s 

conservation actions to make the area 

less visible. Prior to the CDPR taking 

actions to minimize the recreational 

impacts to this taxon, it was apparent 

that the plant was in danger of going 

extinct. The small size and delicate 

structure of this plant make it especially 

vulnerable to trampling by people and 

animals (Lewis 1945, p. 284–386; 

Hamilton 1996). The actions that CDPR 

undertook once these concerns were 

expressed began to reverse the negative 

impacts to the taxon from recreational 

activities. Following the listing of this 

plant, CDPR continued to provide 

measures that were designed to recover 

it. It is important that these and further 

conservation efforts continue so that 

this taxon no longer requires the 

protections afforded it under the Act. 

We believe that the identification of the 

specific areas essential to its 

conservation, based on past experiences 

and information concerning this taxon, 

would be expected to further increase 

the degree of threat to this plant from 

human activity and undo the 

conservation efforts and progress by 

CDPR. 

In addition to increasing threats to 

this taxon and countering past and 

ongoing conservation actions by the 

State of California, designating critical 

habitat for this plant would not support 

our ongoing partnership with CDPR. 

Most federally listed species in the 

United States will not recover without 

the cooperation of non-federal 

landowners. 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 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 


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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. Therefore, to achieve the 

conservation of Trichostema 

austromontanum ssp. compactum, it is 

necessary to maintain our partnership 

with CDPR. 

Benefits to the Species From Critical 

Habitat Designation 

The most direct, and potentially 

largest, regulatory benefit of critical 

habitat is that federally authorized, 

funded, or carried out activities require 

consultation under 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 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. 

There is virtually no possibility of a 

Federal nexus for activities that may 

occur within Trichostema 

austromontanum ssp. compactum’s 

habitat. The San Jacinto Mountains have 

been botanically explored for over 100 

years and only one population of this 

taxon has been found. Because of its 

association with vernal pool margins, 

other areas of suitable habitat likely do 

not exist in this mountain range. The 

Mount San Jacinto State Park 

Wilderness is protected from uses that 

would degrade or destroy natural 

resources. The specific area where this 

plant is found is designated as a Natural 

Preserve, which means that protection 

and management of sensitive resources 

is the highest priority for this area. Due 

to the fact that the taxon occurs only in 

a Natural Preserve on State lands, an 

area where no changes in land-use are 

planned for the foreseeable future, 

virtually no chance exists for a future 

Federal nexus that would result in a 

section 7 consultation for this taxon. In 

fact, the Service has not engaged in any 

consultations for T. a. ssp. compactum 

since its listing in 1998. 

Another 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 the affected 

species. 

In this particular circumstance, any 

educational benefits that could be 

received through a designation of 

critical habitat have the high probability 

of undermining the conservation efforts 

by CDPR and causing harm to 

Trichostema austromontanum ssp. 

compactum. The designation of critical 

habitat often generates interest in a 

species and inspires people to study the 

species and visit the habitat. As 

discussed above, T. a. ssp. compactum 

is small and blends in with other lowlying species on the ground. Thus, 

someone attempting to learn more about 

this plant and its habitat would likely 

actually harm members of the 

population in the process. 

The educational benefit is closely 

related to a second, more indirect 

benefit: that designation of critical 

habitat informs State agencies and local 

governments about areas that could be 

conserved under State laws or local 

ordinances. However, as discussed 

above, CDPR is well aware of the areas 

important to Trichostema 

austromontanum ssp. compactum, and 

is actively implementing measures to 

conserve this taxon. 

Increased Threat to the Species 

Outweighs Benefits of Designation 

Upon reviewing the available 

information, we have determined that 

the designation of critical habitat would 

increase the degree of threat from 

human activity to Trichostema 

austromontanum ssp. compactum. 

There is a strong possibility that through 

the designation of critical habitat 

negative impacts to the habitat would 

occur. The dissemination of location 

information is likely to result in an 

increased threat to the plant from 

trampling. Designation of critical habitat 

will undermine the conservation actions 

that CDPR has already put into place for 

this taxon. These ongoing conservation 

actions appear to have minimized the 

primary threat to this taxon; and as 

discussed above, we believe that 

designation of critical habitat would 

reverse these efforts and increase the 

threat of trampling to this plant. 

Furthermore, we have determined that 

there is no benefit of critical habitat 

designation to T. a. ssp. compactum 

because (1) it is highly unlikely that a 

Section 7 consultation will occur for 

this taxon; (2) the general educational 

benefits afforded by critical habitat 

designation are minimal for this 

particular taxon; and (3) designation of 

critical habitat would undermine 

ongoing conservation efforts and hinder 

our partnership with CDPR. Based on 

our determination that critical habitat 

designation would increase the degree 

of threats to T. a. ssp. compactum and 

our inability to determine a benefit of 

designation, we believe the increased 

threat to T. a. ssp. compactum from the 

designation of critical habitat far 

outweighs any benefits of designation. 

Summary 

Pursuant to the Court’s April 14, 

2005, stipulated settlement agreement 

and order we are withdrawing our 

previous ‘‘not prudent’’ determination. 

Further, on the basis of our review of 

the best scientific and commercial 

information available, we have 

reaffirmed that designation of critical 

habitat is not prudent for Trichostema 

austromontanum ssp. compactum. We 

have determined that the designation of 

critical habitat would increase the 

degree of threat to this taxon and will 

undermine the conservation actions that 

CDPR has already put into place for this 

taxon. These ongoing conservation 

actions appear to have minimized the 

primary threat to T. a. ssp. compactum; 

and as discussed above, we believe that 

designation of critical habitat would 

reverse these efforts and increase the 

threat of trampling to this taxon. 

Furthermore, we have determined that 

there is no benefit of critical habitat 

designation to T. a. ssp. compactum, 

and that, even if some benefit from 

designation may exist, the increased 

threat to the plant from human activity 

far outweighs any potential benefit to 

the taxon. We therefore propose that it 

is not prudent to designate critical 

habitat for T. a. ssp. compactum at this 

time. 

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 (OMB) 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 

determination is based on scientifically 

sound data, assumptions, and analyses. 

We will send copies of this proposed 

determination to the peer reviewers 

immediately following publication in 

the Federal Register, and will invite the 


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peer reviewers to comment during the 

public comment period on the specific 

assumptions and conclusions regarding 

the proposed prudency determination. 

We will consider all comments and 

information received during the 

comment period on this proposed 

determination during preparation of a 

final determination. Accordingly, the 

final decision may differ from this 

proposal. 

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 determination easier to 

understand, including answers to 

questions such as the following: (1) Are 

the requirements in the proposed 

determination clearly stated? (2) Does 

the document contain technical jargon 

that interferes with the clarity? (3) Does 

the format of the document (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 

helpful in understanding the proposed 

determination? (5) What else could we 

do to make this proposed determination 

easier to understand? Send a copy of 

any comments on how we could make 

this proposed determination 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. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This proposed determination does not 

contain any new collections of 

information that require approval by 

OMB under the Paperwork Reduction 

Act. This determination 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 

It is our position that, outside the 

Tenth Circuit, we do not need to 

prepare environmental analyses as 

defined by the 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 

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 there are no Tribal 

lands occupied at the time of listing 

contain the features essential for the 

conservation and no tribal lands that are 

unoccupied areas that are essential for 

the conservation of Trichostema 

austromontanum ssp. compactum. 

Therefore, no tribal lands will be 

affected by this finding. 

References Cited 

A complete list of all references cited 

in this finding is available upon request 

from the Field Supervisor, Carlsbad Fish 

and Wildlife Office (see ADDRESSES

section). 

Author 

The primary author of this document 

is staff of the Carlsbad Fish and Wildlife 

Office (see ADDRESSES section). 

Authority 

The authority for this action is the 

Endangered Species Act of 1973, as 

amended (16 U.S.C. 1531 et seq.). 

Dated: September 19, 2006. 

David M. Verhey, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. 06–8190 Filed 9–25–06; 8:45 am] 

BILLING CODE 4310–55–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 060906236–6236–01; I.D. 

083006B] 

RIN 0648–AU83 

Fisheries of the Northeastern United 

States; Method For Measuring Net 

Mesh Size 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS proposes to amend the 

regulations governing how fishing net 

mesh size is measured in the Northeast. 

This proposed change would increase 

the weight used to measure mesh larger 

than 120 mm (4.72 inches) in all 

fisheries. The intent of this proposed 

rule is to ensure consistent and accurate 

measurements of fishing net mesh size. 

DATES: Written comments must be 

received no later than 5 p.m. local time 

on October 26, 2006 

ADDRESSES: Comments may be 

submitted by any of the following 

methods: 

E-mail: MeshRegChange@noaa.gov 

Federal e-Rulemaking Portal: http:// 

www.regulations.gov. 

Mail: Patricia A. Kurkul, Regional 

Administrator, Northeast Region, 

National Marine Fisheries Service, One 

Blackburn Drive, Gloucester, MA 

01930–2298. Please write on the 

envelope: Comments on Proposed 

Change to Mesh Measurement 

Regulations. 

FOR FURTHER INFORMATION CONTACT: 

Douglas Potts, Fishery Management 

Specialist, (978) 281–9341, FAX (978) 

281–9135. 

SUPPLEMENTARY INFORMATION: 

Background 

NOAA Office of Law Enforcement, 

U.S. Coast Guard, and state enforcement 

partners have recently issued a 

clarification of the method used in 

measuring fishing net mesh size. This 

protocol closely follows the regulatory 

language, at 50 CFR Part 648, that a 

wedge-shaped net measurement gauge 

be allowed to settle under a specified 

weight, without shaking the net or 

pressing on the gauge to force it deeper 

into the mesh opening. This 

clarification eliminated some of the 


sroberts on PROD1PC70 with PROPOSALS