32052 Federal Register / Vol. 66, No. 114 / Wednesday, June 13, 2001 / Proposed Rules

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AH00

Endangered and Threatened Wildlife

and Plants; Proposed Designation of

Critical Habitat for Deinandra

conjugens (Otay tarplant)

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Proposed rule.

SUMMARY: We, the U.S. Fish and

Wildlife Service, propose designation of

critical habitat for Deinandra conjugens

[= Hemizonia conjugens] (Otay tarplant)

pursuant to the Endangered Species Act

of 1973, as amended (Act). Deinandra

conjugens was federally listed as

threatened (under the name Hemizonia

conjugens) throughout its range in

southwestern California and

northwestern Baja California, Mexico in

1998. A total of approximately 2,685

hectares (ha) (6,630 acres (ac)) in San

Diego County, California, are proposed

for designation as critical habitat for D.

conjugens. We have not proposed

critical habitat on lands covered by an

existing, legally operative, Habitat

Conservation Plan (HCP) under section

10(a)(1)(B) of the Act in which

Deinandra conjugens is a covered

species. In areas where HCPs have not

yet been completed, we have proposed

designation of critical habitat for lands

encompassing essential habitat for

Deinandra conjugens.

If this proposal is made final, section

7 of the Act requires Federal agencies to

ensure that actions they fund, authorize,

or carry out do not destroy or adversely

modify critical habitat to the extent that

the action appreciably diminishes the

value of the critical habitat for the

survival and recovery of the species.

Section 4 of the Act requires us to

consider economic and other impacts of

specifying any particular area as critical

habitat.

We solicit data and comments from

the public on all aspects of this

proposal, including data on economic

and other impacts of the designation.

We may revise or further refine critical

habitat boundaries prior to final

designation based on habitat and plant

surveys, public comments on the

proposed critical habitat rule,

finalization of pending habitat

conservation plans, and new scientific

and commercial information.

DATES: We will accept comments until

the close of business on August 13,

2001. Public hearing requests must be

received by July 30, 2001.

ADDRESSES: If you wish to comment,

you may submit your comments and

materials by any one of several methods:

1. You may submit written comments

and information to the Field Supervisor,

Carlsbad Fish and Wildlife Office, U.S.

Fish and Wildlife Service, 2730 Loker

Avenue West, Carlsbad, California

92008.

2. You may hand-deliver written

comments to our Carlsbad Fish and

Wildlife Office at the address given

above.

3. You may send comments by

electronic mail (e-mail) to:

fw1cfwo_deco@fws.gov. See the Public

Comments Solicited section below for

file format and other information about

electronic filing.

You may view comments and

materials received, as well as supporting

documentation used in the preparation

of this proposed rule, by appointment,

during normal business hours at the

above address.

FOR FURTHER INFORMATION CONTACT: Jim

Bartel, Field Supervisor, Carlsbad Fish

and Wildlife Office, U.S. Fish and

Wildlife Office, at the above address

(telephone 760/431–9440; facsimile

760/431–9618).

SUPPLEMENTARY INFORMATION:

Background

Deinandra conjugens (Otay tarplant)

was known as Hemizonia conjugens

when it was listed on October 13, 1998

(63 FR 54938). Since then, studies

analyzing plant and flower morphology

and genetic information prompted

Baldwin (1999) to revise the Madiinae

(tarplants), a tribe in the Asteraceae

(sunflower family), and reclassify

several species into new or different

genera. As a result, Deinandra

conjugens is now the accepted scientific

name for Hemizonia conjugens. This

taxonomic change does not alter the

limits or definition of D. conjugens.

Because this taxonomic change was

published and is generally accepted by

the scientific community, we are

proposing to change the name of H.

conjugens to D. conjugens in 50 CFR

17.12 (h), and will use D. conjugens in

this proposed rule.

Deinandra conjugens was first

described by David D. Keck (1958) as

Hemizonia conjugens based on a

specimen collected by L.R. Abrams in

1903 from river bottom land in the Otay

Valley area of San Diego County,

California. Deinandra conjugens is a

glandular, aromatic annual of the

Asteraceae. It has a branching stem that

generally ranges from 5 to 25

centimeters (2 to 10 inches) in height

with deep green or gray-green leaves

covered with soft, shaggy hairs. The

yellow flower heads are composed of 8

to 10 ray flowers and 13 to 21 disk

flowers with hairless or sparingly

downy corollas (fused petals). The

phyllaries (small bracts associated with

the flower heads) are ridged and have

short-stalked glands and large, stalkless,

flat glands near the margins. Deinandra

conjugens occurs within the range of D.

fasciculata [=Hemizonia fasciculata]

(fasciculated tarplant) and D. paniculata

[=H. paniculata] (San Diego tarplant).

Deinandra conjugens can be

distinguished from other members of

the genus by its ridged phyllaries, black

anthers (part of flower that produces

pollen), and by the number of disk and

ray flowers. The disk and ray flowers

each produce different types of seeds

(heterocarpy) which is correlated to

differential germination responses

(Tanowitz et al. 1987).

Most Deinandra conjugens

occurrences are closely associated with

particular soils, vegetation types, and

elevation range within southwestern

San Diego County, California, and

northwestern Baja California, Mexico.

The majority of D. conjugens

occurrences are associated with clay

soils and with grasslands (native, nonnative, and mixed), coastal sage scrub,

or maritime succulent scrub. Current

information indicates that D. conjugens

has a narrow geographic and elevation

range based on information from

herbarium records at the San Diego

Natural History Museum (SDNHM) and

CNDDB (2000) records.

Deinandra conjugens is strongly

correlated with clay soils, subsoils, or

lenses (Bauder and Truesdale 2000).

Clay soils are heavy (dense) soils with

small particles. Such soils typically

support grasslands, but may support

some woody vegetation. Much of the

area with clay soils and subsoils within

the historical range of D. conjugens

likely was once vegetated with native

grassland and open coastal sage scrub

and maritime succulent scrub, which

provided suitable habitat for D.

conjugens. Based on our Geographic

Information System (GIS) analysis, most

current and historical D. conjugens

occurrences (92 percent) are found on

clay soils or lenses in one of the

following soil types: Diablo clay,

Olivenhain cobbly loam, Linne clay

loam, Salinas clay loam, Huerhuero

loam, Diablo-Olivenhain complex,

Stockpen gravelly clay, and San MiguelExchequer rocky silt loams.

Deinandra conjugens is also strongly

associated with particular vegetation

types. The species is found in vegetation

Federal Register / Vol. 66, No. 114 / Wednesday, June 13, 2001 / Proposed Rules 32053

communities classified as, but not

limited to, grasslands (native, nonnative, and mixed), open coastal sage

scrub, maritime succulent scrub, and

the margins of some disturbed sites and

cultivated fields (California Natural

Diversity Data Base (CNDDB) 2000;

Keck 1959; Keil 1993; Skinner and

Pavlik 1994; David Hogan, San Diego

Biodiversity Project, in litt. 1990; Bruce

Baldwin, Jepson Herbarium, pers.

comm. 2001; Mark Dodero, RECON,

pers. comm. 2001; Scott McMillan,

McMillan Biological Consulting, pers.

comm. 2001). Plant species common to

these vegetation communities include

Nassella spp. (needlegrass), Bloomeria

crocea (common goldenstar),

Dichelostemma pulchella (blue dicks),

Chlorogalum spp. (soap plant), Bromus

spp. (brome grass), Avena spp. (oats),

Deinandra fasciculata (fasciculated

tarweed), Lasthenia californica

(common goldfields), Artemisia

californica (California sagebrush),

Eriogonum fasciculatum (flat-top

buckwheat), Lotus scoparius (deer

weed), Salvia spp. (sage), Mimulus

aurantiacus (bush monkeyflower),

Malacothamnus fasciculatum

(bushmallow), Malosma laurina (laurel

sumac), Rhus ovata (sugar bush), R.

integrifolia (lemonade berry), Lycium

spp. (boxthorn), Euphorbia misera (cliff

spurge), Simmondsia chinensis (jojoba),

Opuntia spp. (prickly pear and cholla

cactuses), Ferocactus viridescens

(coastal barrel cactus), Ambrosia

chenopodiifolia (San Diego bur sage),

and Dudleya spp. (live-forevers).

Based on information from herbarium

records at the San Diego Natural History

Museum (SDNHM) and CNDDB (2000)

records, Deinandra conjugens has a

narrow geographic distribution.

Additional information since the listing

indicates that the historical range for D.

conjugens in San Diego County,

California, is from the Mexican border

north to Spring Valley and Paradise

Valley, a distance of about 24 kilometers

(km) (15 miles (mi)), and from Interstate

805 east to Otay Lakes Reservoir, a

distance of about 13 km (8 mi). Further,

based on these museum and database

records, the elevational range for D.

conjugens appears to be between 25 and

300 meters (m) (80 and 1000 feet (ft)).

Because other Deinandra species have

been documented outside of these

elevations and geographic distributions,

during the same time periods, but

absent D. conjugens, we believe these to

be the elevation and range limits for this

species in the United States.

Typically, Deinandra conjugens and

other tarplants cannot produce viable

seeds without cross pollinating with

other individuals (i.e. are extremely selfincompatible) (Keck 1959; Tanowitz

1982; B. Baldwin, in litt. 2001). Gene

flow is important for the long-term

survival of self-incompatible species

(Ellstrand 1992) such as through

pollination. Gene flow in D. conjugens

is essentially achieved through pollen

movement among populations. The

movement of pollen likely occurs over

short distances because most of the

insects that visit Deinandra are

relatively localized and generally travel

less than 0.5 km (0.3 mi) at one time.

Because small inter-population

occurrences of D. conjugens may

facilitate greater gene flow, this

conservation may be critical to

maintaining genetic diversity in D.

conjugens. Pollinators of D. conjugens

include, but are not limited to, bee flies

(Bombylliidae); hover flies (Syrphidae);

digger, carpenter, and cuckoo bees

(Anthophoridae); and metallic bees

(Halictidae) (Krombein et al. 1979; M.

Dodero, pers. comm. 2001). The

following bee species have been

documented visiting Deinandra species:

Nomia melanderi, Colletes angelicus,

Nomadopsis helianthi, Ventralis

claypolei ausralior, Anthidiellum

notatum robertsoni, Heriades

occidentalis, Anthocopa hemizoniae,

Ashmeadiella californica californica,

Svastra sabinensis nubila, Melissodes

tessellata, M. moorei, M. personatella,

M. robustior, M. semilupina, M. lupina,

M. stearnsi, Anthophora urbana urbana,

and A. curta curta (Krombein et al.

1979).

Deinandra conjugens fruits are each

one-seeded and are likely to be

dispersed by small to large-sized

mammals and birds based on the sticky

nature of the remaining flower parts that

are attached to the fruits and the

discontinuous distribution of other

tarplants (B. Baldwin, in litt. 2001; M.

Dodero, pers. comm. 2001; Elizabeth

Friar, Claremont Graduate University,

pers. comm. 2001; Gjon Hazard, U. S.

Fish and Wildlife Service (Service),

pers. comm. 2001). Likely seed/fruit

dispersal organisms include, but are not

limited to, mule deer (Odocoileus

hemionus), gray foxes (Urocyon

cinereoargenteus), coyotes (Canis

latrans), black-tailed jackrabbits (Lepus

californicus bennettii), bobcats (Felis

rufus), striped skunks (Mephitis

mephitis), opossums (Didelphis

virginiana), racoons (Procyon lotor), and

small land birds.

The Deinandra conjugens seed bank

(a reserve of dormant seeds, generally

found in the soil) is important for its

year-to-year and long-term survival

(Given 1994, Rice 1989). A seed bank

includes all of the seeds in a population

and generally covers a larger area than

the extent of observable plants seen in

a given year. The number and location

of standing plants in a population varies

annually due to a number of factors,

including the amount and timing of

rainfall, temperature, soil conditions,

and the extent and nature of the seed

bank. Large annual fluctuations in the

number of standing plants in a given

site have been documented. Population

size has ranged from 1 to over 5,400

standing plants at a site on northwest

Otay Mesa (CNDDB 2000; City of San

Diego, in litt. 1999), from approximately

100 to 50,000 in a site in Rice Canyon

(CNDDB 2000), and from approximately

280,000 to 1.9 million at San Miguel

Ranch South (CNDDB 2000; Merkel &

Associates, in litt. 1999). In any given

year, the observable plants in a

population are only the portion of the

individuals from the seed bank that

germinated that year. These annual

fluctuations make it look as though a

population of annual plants ‘‘moves’’

from year to year, when in actuality, a

different portion of a population

germinates and flowers each year. The

occurrence and spatial distribution of a

standing population of plants is

generally the result of the occurrence

and spatial distribution of the microenvironmental conditions conducive to

the germination of the seeds and growth

of the plants within the seed bank of a

population.

Determining the size/magnitude of a

given Deinandra conjugens population

is difficult due to the major fluctuations

that have been documented in known

sites (CNDDB 2000; Merkel &

Associates, in litt. 1999). Conditions

during some years are better for growth

and reproduction of D. conjugens in

some populations (and even some

portions of a population) than other

years. Because the number of standing

plants in a given population can vary by

orders of magnitude from one year to

the next, the number of standing plants

observed in a population in any one

year does not indicate the magnitude of

that population.

The largest number of Deinandra

conjugens plants were recorded in 1998

when it was estimated that there were

over 2 million individuals for the

species as a whole (CNDDB 2000;

Merkel & Associates, in litt. 1999).

However, the number of standing plants

in most years is probably considerably

fewer. To demonstrate this variability,

the species was thought to be extinct as

a result of extensive development

within its range until its rediscovery in

Estado de Baja California, Mexico in

1977 (Tanowitz 1978). Conversely, the

largest population (Rancho San Miguel)

supported about 1.9 million plants

32054 Federal Register / Vol. 66, No. 114 / Wednesday, June 13, 2001 / Proposed Rules

during 1998 when southern California

experienced El Nin ̃ o weather

conditions, which resulted in a

particularly wet and prolonged growing

season (Merkel & Associates, in litt.

1999).

In 1998, the five largest populations of

Deinandra conjugens (Rancho San

Miguel, Rice Canyon, Dennery Canyon,

Poggi Canyon, and Proctor Valley) were

known to support about 98 percent of

all reported standing plants (CNDDB

2000; San Diego Gas and Electric 1995;

Roberts 1997; Merkel & Associates, in

litt. 1999; Sandra Morey, California

Department of Fish and Game (CDFG),

in litt. 1994; Ogden Environmental

1992; Brenda Stone, California

Department of Transportation, in litt.

1994) with each reportedly containing

more than 10,000 standing plants. Of

the remaining populations, 8 are

reported to support from 1,000 to 8,000

plants each; 9 are reported to support

fewer than 1,000 plants each; and 3 are

considered to be extirpated (CNDDB

2000). These populations occur on

Federal, local, and private lands

(CNDDB 2000).

The smaller populations of Deinandra

conjugens are essential to the survival

and conservation of the species because

they are strategically located between

larger populations and facilitate gene

flow among them. Gene flow has been

demonstrated to reduce local and global

extinction rates in a number of species

(Hanski 1998; B. Baldwin, in litt. 2001).

Processes such as mutation, genetic

migration, and random genetic drift are

known to adversely affect small

populations (Barrett and Kohn 1991).

Adverse effects from these processes on

D. conjugens are magnified by its selfincompatibility (Keck 1959; Tanowitz

1982; B. Baldwin, in litt. 2001).

Maintaining gene flow among the

populations is essential to counter the

adverse effects from the processes

mentioned above, and to ensure the

long-term survival and conservation of

this species.

Deinandra conjugens has a limited

distribution consisting of at least 25

historical populations near Otay Mesa

in southern San Diego County and one

population near the United States

border in Baja California, Mexico (CDFG

1994; Roberts 1997; CNDDB 2000;

Reiser 1996; herbarium records at the

SDNHM; S. Morey, in litt. 1994). Three

of the 25 historic localities of D.

conjugens in the United States are

considered to be extirpated (CNDDB

2000; D. Hogan, in litt. 1990; S. Morey,

in litt. 1994). At the time the species

was listed in 1998, we estimated that 70

percent of the suitable habitat for this

species within its known range had

been lost to development or agriculture

(63 FR 54938). Since the listing,

additional habitat has been lost to

development (e.g., urban, commercial,

industrial, residential) and agriculture

(e.g., grazing, farming).

Deinandra conjugens appears to

tolerate mild levels of disturbance such

as light grazing (D. Hogan, in litt. 1990;

Barry Tanowitz, University of

California, in litt. 1977). Such mild

disturbances may create sites conducive

to germination (B. Tanowitz, in litt.

1977). However, the species is otherwise

threatened by urbanization and related

activities, intensive agriculture, and the

invasion of non-native species which

may result in significant disturbance to

populations (63 FR 54938). Because of

these threats, we anticipate that

intensive long-term monitoring and

management will be needed to conserve

this species.

At the time the species was listed in

1998, we estimated that about 11,930 ha

(30,310 ac) of land with clay soils or

clay subsoils were within the general

range of Deinandra conjugens in San

Diego County, California (63 FR 54938).

Also at that time, about 4,200 ha (10,600

ac) (about 37 percent) of this area had

been urbanized and about 4,155 ha

(10,555 ac) (about 37 percent) had been

heavily cultivated and grazed (63 FR

54938). Additional areas have been lost

to urbanization since this time. New

information from herbarium records at

the SDNHM indicates that the historic

range of D. conjugens extended further

to the north and northwest. Most of the

habitat in this additional area has

already been lost to development. Much

of the cultivated and grazed lands in

this range could be restored to support

D. conjugens, which can grow in the

margins of cultivated fields (S.

McMillan, pers. comm. 2001; M.

Dodero, pers. comm. 2001). However,

most of these lands will likely be

unavailable for the species because of

proposed land use (FWS GIS database

2001 which includes coverages from

San Diego Association of Governments).

Previous Federal Action

On December 15, 1980, we published

a Notice of Review of plants which

included Deinandra conjugens as a

category 1 candidate taxon (45 FR

82480). Category 1 taxa were those taxa

for which substantial information on

biological vulnerability and threats are

available to support preparation of

listing proposals. On November 28,

1983, we published a supplement to the

1980 Notice of Review that treated D.

conjugens as category 2 candidate taxa

(48 FR 53640). Category 2 candidates

were taxa for which data in our

possession indicated listing was

possibly appropriate but for which

substantial information on biological

vulnerability and threats were not

known or on file to support preparation

of proposed rules.

On December 14, 1990, we received a

petition dated December 5, 1990, from

Mr. David Hogan of the San Diego

Biodiversity Project, to list Deinandra

conjugens as endangered. The petition

also requested designation of critical

habitat. Because D. conjugens was

included in the Smithsonian

Institution’s Report of 1975, designated

as House Document No. 94–51, that had

been accepted as a petition, we regarded

Mr. Hogan’s petition to list this taxon as

a second petition. We ultimately

responded to the petitions by publishing

a proposed rule to list D. conjugens as

endangered on August 9, 1995 (60 FR

40549). On October 13, 1998, we

published a final rule listing D.

conjugens as threatened (63 FR 54938).

At that time, we indicated that

designation of critical habitat was not

prudent.

On July 15, 1999, the California

Native Plant Society (CNPS) and

Southwest Center for Biological

Diversity (SWCBD) filed a lawsuit in

Federal District Court for the Southern

District of California, in part,

challenging our decision not to

designate critical habitat for Deinandra

conjugens (California Native Plant

Society; et al. v. Babbitt, et al.,

99CV1454 L (S.D.Cal.). On December 21,

2000, we entered into a stipulated

settlement agreement with the plaintiffs

under which we agreed to reevaluate the

prudency determination for D.

conjugens. Under the settlement

agreement, if we determine that critical

habitat is prudent, we are to publish in

the Federal Register a proposed rule to

designate critical habitat by June 5,

2001, with a final determination to be

completed by May 30, 2002. This

proposed critical habitat determination

is consistent with this stipulated

settlement agreement.

Critical Habitat

Critical habitat is defined in section 3

of the Act as—(I) the specific areas

within the geographic area occupied by

a species, at the time it is listed in

accordance with the Act, on which are

found those physical or biological

features (I) essential to the conservation

of the species and (II) that may require

special management considerations or

protection; and (ii) specific areas

outside the geographic area occupied by

a species at the time it is listed, upon

a determination that such areas are

essential for the conservation of the

Federal Register / Vol. 66, No. 114 / Wednesday, June 13, 2001 / Proposed Rules 32055

species. ‘‘Conservation’’ means the use

of all methods and procedures that are

necessary to bring an endangered

species or a threatened species to the

point at which listing under the Act is

no longer necessary.

Critical habitat receives protection

under section 7 of the Act through the

prohibition against destruction or

adverse modification with regard to

actions carried out, funded, permitted,

or authorized by a Federal agency.

Section 7 also requires conferences on

Federal actions that are likely to result

in the destruction or adverse

modification of proposed 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.’’ Aside from the added

protection that may be provided under

section 7, the Act does not provide other

forms of protection to lands designated

as critical habitat. Because consultation

under section 7 of the Act does not

apply to activities on private or other

non-Federal lands that lack a Federal

nexus, critical habitat designation

would not afford any additional

protections under the Act with respect

to such activities.

To be included in a critical habitat

designation, the habitat must first be

‘‘essential to the conservation of the

species.’’ Critical habitat designations

identify, to the extent known using the

best scientific and commercial 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)).

Section 4 requires that we designate

critical habitat, to the extent such

habitat is determinable, at the time of

listing. When we designate critical

habitat at the time of listing or under

short court-ordered deadlines, we will

often not have sufficient information to

identify all areas of critical habitat. We

are required, nevertheless, to make a

decision and thus must base our

designations on what, at the time of

designation, we know to be critical

habitat.

Within the geographic area occupied

by the species, we will designate only

areas currently known to be essential.

Essential areas should already have the

features and habitat characteristics that

are necessary to sustain the species. We

will not speculate about what areas

might be found to be essential if better

information became available, or what

areas may become essential over time. If

the information available at the time of

designation does not show that an area

provides essential life cycle needs of the

species, then the area should not be

included in the critical habitat

designation. Within the geographic area

occupied by the species, we will not

designate areas that do not now have the

primary constituent elements, as

defined at 50 CFR 424.12(b), that

provide essential life cycle needs of the

species.

Our regulations state that, ‘‘The

Secretary shall designate as critical

habitat areas outside the geographic area

presently occupied by a species only

when a designation limited to its

present range would be inadequate to

ensure the conservation of the species.’’

(50 CFR 424.12(e)). Accordingly, when

the best available scientific and

commercial data do not demonstrate

that the conservation needs of the

species require designation of critical

habitat outside of occupied areas, we

will not designate critical habitat in

areas outside the geographic area

occupied by the species.

Our Policy on Information Standards

Under the Endangered Species Act,

published in the Federal Register on

July 1, 1994 (59 FR 34271), provides

criteria, establishes procedures, and

provides guidance to ensure that our

decisions represent the best scientific

and commercial data available. It

requires Service biologists, to the extent

consistent with the Act, and with the

use of the best scientific and

commercial 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 should, at a minimum, be

the listing package for the species.

Additional information may be obtained

from a recovery plan, articles in peerreviewed journals, conservation plans

developed by States and counties,

scientific status surveys and studies,

biological assessments, unpublished

materials, and expert opinion.

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, all should

understand that critical habitat

designations do not signal that habitat

outside the designation is unimportant

or may not be required for recovery.

Areas outside the critical habitat

designation will continue to be subject

to conservation actions that may be

implemented under section 7(a)(1) and

to the regulatory protections afforded by

the section 7(a)(2) jeopardy standard

and the section 9 take prohibition, as

determined on the basis of the best

available information at the time of the

action. We specifically anticipate that

federally funded or assisted 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.

Prudency Determination

Section 4(a)(3) of the Act, as

amended, and implementing regulations

(50 CFR 424.12) require that, to the

maximum extent prudent and

determinable, we designate critical

habitat at the time the species is

determined to be endangered or

threatened. At the time of the final

listing determination (63 FR 54938), we

concluded that designation of critical

habitat for Deinandra conjugens was not

prudent because such designation

would not benefit the species. Our

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

that designation of critical habitat is not

prudent when one or both of the

following situations exist—(1) The

species is threatened by taking or other

human activity, and identification of

critical habitat can be expected to

increase the degree of such threat to the

species, or (2) such designation of

critical habitat would not be beneficial

to the species.

In our final rule, we concluded that

the designation of critical habitat for

Deinandra conjugens was not prudent,

explaining that such designation would

not benefit the species because it occurs

primarily on private lands with little or

no Federal involvement (63 FR 54954).

We now conclude that there may be

some additional benefits to designating

critical habitat. While a critical habitat

designation for habitat currently

occupied by this species would not

likely change the section 7 consultation

because an action that destroys or

adversely modifies such critical habitat

would also be likely to result in

jeopardy to the species, there may be

instances where section 7 consultation

32056 Federal Register / Vol. 66, No. 114 / Wednesday, June 13, 2001 / Proposed Rules

would be triggered only if critical

habitat is designated (for example, if we

designated unoccupied habitat, or if

occupied habitat became unoccupied in

the future).

There may also be some educational

or informational benefits to designating

critical habitat. Critical habitat may be

used as a tool to help identify areas

within the range of Deinandra

conjugens essential for the conservation

of the species. For example, designation

of critical habitat on non-Federal lands

may provide some educational benefit

by formally identifying on a range-wide

basis those areas essential to the

conservation of the species and, thus,

areas that are likely to be the focus of

recovery efforts for D. conjugens.

In addition, three significant

occurrences of Deinandra conjugens

now occur on Federal lands, two on the

Otay-Sweetwater Unit of the San Diego

National Wildlife Refuge (SDNWR) and

one on Brown Field, which is under the

authority of the Immigration and

Naturalization Service-Border Patrol

(INS). The land that contains the two

occurrences on SDNWR was acquired

after the species was listed and the

occurrence on the INS site was only

known as a point locality, but was

determined to be much more extensive

(with more than 5,000 standing plants)

after the species was listed.

Based on our discussion above, we

now conclude that there may be some

additional benefits to designating

critical habitat on lands essential for the

conservation of Deinandra conjugens.

Therefore, it is prudent to propose the

designation of critical habitat for D.

conjugens.

Methods

In determining areas that are essential

to conserve Deinandra conjugens, we

used the best scientific data available.

We reviewed available information that

pertains to the habitat requirements of

this species, including data from

research and survey observations

published in peer-reviewed articles;

regional GIS coverages (e.g., soils,

known locations, vegetation, land

ownership, and habitat conservation

plan (HCP) boundaries); information

from herbarium collections such as from

SDNHM; data from the CNDDB (2000);

data collected from project-specific and

other miscellaneous reports submitted

to us; additional data from the San

Diego County Multiple Species

Conservation Program (MSCP), such as

information from various Subarea or

draft Subarea Plans (e.g., City of San

Diego, County of San Diego, City of La

Mesa, and City of Chula Vista);

information in the San Diego Gas and

Electric HCP (1995); and a habitat

evaluation model for the Otay Mesa

Generating Project.

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 must

consider those physical and biological

features (primary constituent elements)

that are essential to the conservation of

the species, and 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,

rearing of offspring; and habitats that are

protected from disturbance or are

representative of the historic

geographical and ecological

distributions of a species. All areas

proposed as critical habitat for

Deinandra conjugens are within the

historical range and contain one or more

of these physical or biological features

(primary constituent elements) essential

for the conservation of the species.

The proposed critical habitat is

designed to provide sufficient habitat to

maintain self-sustaining populations of

Deinandra conjugens throughout its

range, and provide those habitat

components essential for the

conservation of the species. Habitat

components that are essential for D.

conjugens are found in vegetation

communities classified as, but not

limited to, grasslands (native, nonnative, and mixed), coastal sage scrub,

or maritime succulent scrub in

southwestern San Diego County,

California. These habitat components

provide for: (1) Individual and

population growth, including sites for

germination, pollination, reproduction,

pollen and seed dispersal, and seed

dormancy; (2) areas that allow gene flow

and provide connectivity or linkage

between or within larger populations,

including open spaces and disturbed

areas that in some instances may also

contain introduced plant species; (3)

areas that provide basic requirements

for growth such as water, light, minerals

(i.e., watersheds); and (4) areas that

support populations of pollinators and

seed dispersal organisms.

The long-term survival and

conservation of Deinandra conjugens is

dependent upon a number of factors,

including the protection and

management of existing population

sites, the protection of inter-population

occurrences, the maintenance of normal

ecological functions within these sites,

the preservation of the connectivity

between sites to maintain the natural

order of gene flow between sites through

pollinator activity and seed dispersal

mechanisms, the protection and

maintenance of sites for the survival of

pollinators and seed dispersal agents,

and the preservation of suitable microhabitat sites that could be recolonized

and allow a population to survive a

catastrophic event. The small

fragmented range of this species,

coupled with its breeding system (i.e.,

its self-incompatibility and annual

nature), makes it especially vulnerable

to natural and anthropogenic effects

including disturbance from human and

agricultural activities; spread of nonnative species; and nearby use of

herbicides, pesticides, and other

contaminants (63 FR 54938; B. Baldwin,

pers. comm. 2001; S. McMillan, pers.

comm. 2001).

Based on our current knowledge of

this species, the primary constituent

elements of Deinandra conjugens

critical habitat consist of, but are not

limited to:

(1) soils with a high clay content

(generally >25 percent) (or clay

intrusions or lenses) that are associated

with grasslands (native, non-native, and

mixed), open coastal sage scrub, or

maritime succulent scrub communities

between 25 m (80 ft) and 300 m (1000

ft) elevation; and

(2) plant communities associated with

Deinandra conjugens which include,

but are not limited to grasslands (native,

non-native, and mixed), open coastal

sage scrub, and maritime succulent

scrub between 25 and 300 m (80 and

1,000 ft) elevation in southwestern San

Diego County, California. Species

common to these communities include

Nassella spp. (needlegrasses), Bloomeria

crocea (common goldenstar),

Dichelostemma pulchella (blue dicks),

Chlorogalum spp. (soap plants), Bromus

spp. (brome grasses), Avena spp. (oats),

Deinandra fasciculata (fascicled

tarweed), Lasthenia californica

(common goldfields), Artemisia

californica (California sagebrush),

Eriogonum fasciculatum (flat-top

buckwheat), Lotus scoparius (deer

weed), Salvia spp.(sages), Mimulus

aurantiacus (bush monkeyflower),

Malacothamnus fasciculatum

(bushmallow), Malosma laurina (laurel

sumac), Rhus ovata (sugar bush), R.

integrifolia (lemonade berry), Lycium

spp. (boxthorns), Euphorbia misera (cliff

spurge), Simmondsia chinensis (jojoba),

Opuntia spp. (prickly pear and cholla

cactuses), Ferocactus viridescens

(coastal barrel cactus), Ambrosia

chenopodiifolia (San Diego bur sage),

Federal Register / Vol. 66, No. 114 / Wednesday, June 13, 2001 / Proposed Rules 32057

and Dudleya spp. (live-forevers). These

plant communities contain natural

openings that provide nesting, foraging,

and dispersal sites for D. conjugens

pollen and seed dispersal agents. These

openings may have soil inclusions that

contain a significantly higher

concentration of sandy soils than the

adjacent clay soils.

Criteria Used To Identify Critical

Habitat

In our proposed delineation of critical

habitat for Deinandra conjugens, we

selected areas essential to the

conservation of the species from within

its known historical range. We used data

from documented occurrences, various

GIS layers, and recent aerial

photography. These data include D.

conjugens locations, soils, vegetation,

elevation, topography, and current land

uses.

We began by using the GIS layers to

identify areas of suitable habitat within

the geographic distribution of this

species. We selected areas with

appropriate soils and vegetation that are

limited to the elevational range of the

species within its known distribution.

We then selected soils and plant

communities that overlapped known

Deinandra conjugens occurrences.

Areas occupied by D. conjugens can not

be determined accurately either by

cursory field examination or by the

limited data from historic observations.

The entire population of an annual

plant (which includes all of the seeds in

the subterranean seed bank and the

observable plants above ground) is not

visible at any one time. The entire seed

bank does not germinate at once, and

the visible population of plants rarely

reflects the extent of the seed bank.

There may be no visible evidence of a

plant population for a year or even a

span of several years, until local

climatic and other conditions are

suitable for seed germination. The

extent and distribution of the observable

plant population may move, shrink, or

grow as conditions change, without a

similar change in the distribution of the

seed bank. As a result, the mapping of

D. conjugens occurrences has been

variable, depending both on the scale of

the mapping and the year in which the

surveys were conducted (documented

examples include records ranging from

one to more than 5,400 plants for one

population, from about 100 to 50,000 in

another, and from 280,000 to 1.9 million

plants in another population). In the

closely related Holocarpha macradenia

(Santa Cruz tarplant), seemingly

unoccupied habitat has been

determined to contain a viable seed

bank where standing plants have not

been seen in over 7 years (Bainbridge,

in litt. 1999). By overlapping known

occurences of D. conjugens with

appropriate soil types, elevations, and

other habitat characteristics, we have

included what we believe is the likely

distribution of the seed bank around

known historical occurrences of D.

conjugens.

We then eliminated areas that did not

contain both appropriate soils and

appropriate vegetation such as, but not

limited to, currently used agriculture

fields, housing developments, and open

water. Next, we eliminated all areas

above 300 m (1000 ft) elevation, the

upper limit of the known distribution of

D. conjugens, based on herbarium

records. We also compared the

remaining areas of suitable D. conjugens

habitat with recent project information

and aerial photography so we did not

include areas that have recently been

developed or had negative surveys for

D. conjugens.

We conducted this analysis to

facilitate delineating suitable habitat

containing the primary constituent

elements. The long-term survival and

conservation of D. conjugens is

dependent upon the protection and

management of existing occurrences,

including the seed bank, and the

maintenance of ecological functions

within these areas, including

connectivity within and among sites to

allow effective pollinator activity and

seed dispersal.

The boundaries of proposed critical

habitat for Deinandra conjugens, shown

on the attached maps and defined in the

legal description, are based on a 100-

meter Universal Transverse Mercator

(UTM) grid, boundaries that have been

legally described for the City of Chula

Vista’s draft preserve design for their

draft MSCP Subarea Plan and the

County of San Diego’s major and minor

amendment areas for their MSCP

Subarea Plan, Sweetwater Authority

lands (a water district in San Diego

County), Otay Water District lands,

Federal lands (e.g., INS, SDNWR), and

Trust for Public Lands property. This

grid was overlaid on those areas

determined to be essential and indicated

by the D. conjugens habitat analysis

where we did not have legal

descriptions for boundaries.

As we discuss in detail below (see

‘‘Relationship To Habitat Conservation

Plans and Other Planning Efforts’’),

lands that are covered by an existing,

legally operative, HCP with an operative

implementing agreement (IA) in which

Deinandra conjugens is a covered

species are not being proposed for

designation as critical habitat and have

not been included in the mapped areas

because the benefits of exclusion

outweigh the benefits of inclusion

pursuant to section 4(b)(2) of the Act.

Areas excluded based on this criterion

include lands within the MSCP for the

County and City of San Diego, with the

exception of those lands within the

major and minor amendment areas,

where the impacts to and conservation

of D. conjugens have not been

addressed. Apart from the lands with

operative HCPs, the majority of the

remaining occupied habitat for D.

conjugens falls within designated or

draft preserve areas within the MSCP.

In defining critical habitat boundaries,

we made an effort to exclude all

developed areas, such as towns or

housing developments, and lands

unlikely to contain the primary

constituent elements essential for

conservation of Deinandra conjugens.

Our 100-m UTM grid minimum

mapping unit was designed to minimize

the amount of development along the

urban edge included in our designation.

Lands containing existing features and

structures, such as buildings, roads,

railroads, urban development, and other

similar developed features that do not

contain primary constituent elements,

are not considered critical habitat and

are not proposed as critical habitat.

Federal actions limited to those areas

would not trigger a section 7

consultation, unless they affect the

species and/or primary constituent

elements in adjacent critical habitat.

The proposed critical habitat units

described below constitute our best

assessment of areas that are essential for

the species’ conservation. We anticipate

that in the time between the proposed

rule and the final rule, and based upon

the additional information received

during the public comment period and

field surveys, that the boundaries of the

mapping units may be refined.

Critical Habitat Proposal

The approximate area encompassing

the proposed designation of critical

habitat by county and land ownership is

shown in Table 1.

32058 Federal Register / Vol. 66, No. 114 / Wednesday, June 13, 2001 / Proposed Rules

TABLE 1.—APPROXIMATE PROPOSED CRITICAL HABITAT IN HECTARES (HA) (ACRES (AC)) BY COUNTY AND LAND

OWNERSHIP

[Area estimates reflect critical habitat unit boundaries, not primary constituent elements within 1]

County Federal 2 State/Local Private Total

San Diego ................................................................. 625 ha (1,545 ac) ... 590 ha (1,455 ac) ... 1,470 ha (3,630 ac) 2,685 ha (6,630 ac)

Total ............................................................... 625 ha (1,545 ac) ... 590 ha (1,455 ac) ... 1,470 ha (3,630 ac) 2,685 ha (6,630 ac)

1Approximate hectares have been converted to acres (1 ha = 2.47 ac). Based on the level of imprecision of mapping at this scale, approximate hectares and acres have been rounded to the nearest 5. 2Federal lands include the Service and INS lands.

Critical habitat includes habitat

throughout the species’ current range in

the United States (San Diego County,

California). Lands proposed are under

Federal, State, local, and private

ownership. Federal lands include areas

owned or managed by the Service and

INS. Lands proposed as critical habitat

have been divided into three critical

habitat units. We are proposing to

designate critical habitat on lands that

are considered essential to the

conservation of Deinandra conjugens.

Each of the critical habitat units for D.

conjugens is considered to be occupied

by either seeds as part of the seed bank

or standing plants. A brief description of

each unit, and reasons for proposing to

designate it as critical habitat, are

presented below.

Unit 1: Sweetwater/Proctor Valley Unit

The Sweetwater/Proctor Valley Unit

encompasses approximately 1,565 ha

(3,865 ac) at the northeastern limit of

this species’ distribution. This unit is

south and east of State Route 54, south

and west of State Route 94, and north

of Upper Otay Reservoir. It includes

portions of the Otay/Sweetwater Unit of

SDNWR; lands belonging to the

Sweetwater Authority around the

Sweetwater Reservoir; lands belonging

to the Otay Water District; lands that are

proposed as preserve under the City of

Chula Vista’s Subarea Plan; portions of

two project areas within the City of

Chula Vista’s Subarea Plan, but outside

of the proposed preserve lands; and

lands that are within major and minor

amendment areas within the County of

San Diego’s Subarea Plan. Two areas in

this unit have not been proposed as

critical habitat, including the alignment

for State Route 125 south and the San

Diego County Park campground

realignment and expansion because

these areas have been analyzed and

determined not to be essential.

This unit contains several large

populations of Deinandra conjugens,

including a portion of the Rancho San

Miguel population estimated to contain

approximately 855,000 standing D.

conjugens plants during the 1995 and

1998 growing seasons (CNDDB 2000;

Merkel & Associates, in litt. 1999). The

Rolling Hills population, which had

approximately 27,000 standing plants in

the 2000 growing season (Stephen

Neudecker, Helix Environmental

Planning, Inc., in litt. 2001), and the

Proctor Valley population, which had

approximately 10,000 standing plants in

the 1990 growing season (CNDDB 2000),

are also included. This unit also

contains an area on the north side of the

Sweetwater Reservoir where reports

indicate there are approximately 2,000

standing plants (Roberts 1997), and an

area on the north portion of the SDNWR

that had approximately 2,000 standing

plants in 1993 (CNDDB 2000).

Additionally, there are a number of new

occurrences in this unit between the

populations that were documented

since the species was listed in 1998.

These newly discovered ‘‘interpopulation’’ occurrences provide

genetic connectivity throughout this

unit and among the Deinandra

conjugens populations. One of these

newly discovered occurrences had

approximately 1,000 standing plants in

2000 (S. McMillan, in litt. 2001) and

another had over 27,000 standing plants

(S. Neudecker, in litt. 2001).

This unit contains multiple large

Deinandra conjugens populations that

are capable of producing large numbers

of individuals in good years, which is

important for this species to survive

through a variety of natural and

environmental changes, as well as

stochastic (random) events. This unit

contains populations in the north and

eastern portions of this species’

distribution which may be important for

its long-term survival and conservation.

The populations in this unit can

maintain genetic connectivity within

and among themselves, and they may

maintain genetic connectivity with the

Otay Valley/Big Murphy’s Unit.

Therefore, the populations in this unit

are essential to the survival and

conservation of the species.

Unit 2: Chula Vista Unit

The Chula Vista Unit encompasses

approximately 210 ha (515 ac) at the

western portion of this plant’s range.

Most of the occurrences and

populations in this unit are found in the

remaining habitat patches along canyon

edges that were not optimum for

urbanization. This unit contains lands

that are proposed as preserve under the

City of Chula Vista’s Subarea Plan,

lands that are in a minor amendment

area under the County of San Diego’s

Subarea Plan, or lands that are in a

minor amendment area under the City

of Chula Vista’s Subarea Plan.

This unit contains the Rice Canyon

population, which had more than

50,000 standing plants in 1994 (CNDDB

2000), and portions of (occurrences

within) the Poggi Canyon population

that had a reported 10,000 standing

plants in 1990 (CNDDB 2000). This unit

contains populations in the western

portion of this species’ distribution

which though currently isolated from

each other may contain significant

amounts of genetic diversity and are,

therefore, essential to the survival and

conservation of the species. Peripheral

populations may have genetic

characteristics essential to overall longterm conservation of the species (i.e.

they may be genetically different than

more central populations) (Lesica and

Allendorf, 1995).

Unit 3: Otay Valley/Big Murphy’s Unit

The Otay Valley/Big Murphy’s Unit

encompasses approximately 910 ha

(2,249 ac). It is east of Interstate 805,

north of the International Boundary

between the United States and Mexico

on the east side, north of State Route

905 on the west side, west of Otay

Mountain, and along the north rim of

Otay Valley including Salt Creek and

Wolf Canyon. This unit includes lands

owned by INS, lands that are proposed

as preserve under the City of Chula

Vista’s Subarea Plan, and lands that are

in major and minor amendment areas in

the County of San Diego’s Subarea Plan.

Areas in this unit that are within the

alignment for State Route 125 south

Federal Register / Vol. 66, No. 114 / Wednesday, June 13, 2001 / Proposed Rules 32059

have not been proposed as critical

habitat because these areas have been

analyzed and determined not to be

essential.

This unit contains several large

populations of Deinandra conjugens

that are capable of producing large

numbers of individuals in good years

which are important for this plant to

survive through a variety of natural and

environmental changes as well as

stochastic events. It also contains the

Otay River Valley population which was

reported to have approximately 4,000

standing plants (Roberts 1997), the Wolf

Canyon population which was reported

to have approximately 4,000 standing

plants (Roberts 1997), the Brown Field

population which had a reported 5,600

individuals in 1998 (U.S. Army Corps of

Engineers (Corps) 2000), and the upper

Salt Creek population which was

reported to have over 1,000 standing

plants (Roberts 1997).

Unit 3 contains populations in the

southern and eastern portions of this

species’ distribution, which may be

important for its long-term survival and

conservation. One population in this

unit is located at the southwest edge of

this species’ range in the United States.

This population may have connectivity

with Deinandra conjugens populations

in northwestern Baja California, Mexico.

Because this population is at the

extreme southwest portion of this

species’ range in the United States, it

may contain important genes that are

not found in other populations.

Based on the proposed preserve

design for the City of Chula Vista’s

Subarea Plan, and the designated

preserve designs for the City and County

of San Diego HCPs, these populations

may all retain connectivity among

themselves because the habitat mosaic

does not have large gaps. The

occurrences in this unit may also

provide and receive pollen or fruits

from Deinandra conjugens populations

in the Sweetwater/Proctor Valley Unit.

This connectivity will facilitate gene

flow within this unit and among other

units which, in turn, may allow

evolutionary processes that affect

Deinandra conjugnes to continue

relatively unimpeded. Maintaining the

D. conjugnes populations and their

genetic connectivity (both within and

among units) is essential to the survival

and conservation of this species. A

portion of the D. conjugnes population

north of Otay Valley and west of Otay

Lakes is located within proposed critical

habitat, and a portion is located outside

of proposed critical habitat in the

proposed development area for the City

of Chula Vista’s Subarea Plan. This

portion of the population may provide

important genetic connectivity between

the Salt Creek and Otay Valley

populations.

Because this unit contains a number

of large Deinandra conjugnes

populations, these populations will

maintain genetic connectivity within

and among themselves, they will

maintain genetic connectivity with the

Sweetwater/Proctor Valley Unit and

possibly with plants in Mexico, and

they may contain essential genetic

diversity; therefore, the populations in

this unit are essential to the survival

and conservation of the species.

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a) of the Act requires

Federal agencies, including the Service,

to ensure that actions they fund,

authorize, or carry out do not destroy or

adversely modify critical habitat to the

extent that the action appreciably

diminishes the value of the critical

habitat for the survival and recovery of

the species. Individuals, organizations,

States, local governments, and other

non-Federal entities are affected by the

designation of critical habitat only if

their actions occur on Federal lands,

require a Federal permit, license, or

other authorization, or involve Federal

funding.

Section 7(a) of the Act requires

Federal agencies, including the Service,

to evaluate their actions with respect to

any species that is proposed or listed as

endangered or threatened and with

respect to its critical habitat, if any is

designated or proposed. Regulations

implementing this interagency

cooperation provision of the Act are

codified at 50 CFR part 402. Section

7(a)(4) requires Federal agencies to

confer with us on any action that is

likely to jeopardize the continued

existence of a proposed species or result

in destruction or adverse modification

of proposed critical habitat. Conference

reports provide conservation

recommendations to assist the action

agency in eliminating conflicts that may

be caused by the proposed action. The

conservation recommendations in a

conference report are advisory. We may

issue a formal conference report, if

requested by the Federal action agency.

Formal conference reports include an

opinion that is prepared according to 50

CFR 402.14, as if the species was listed

or critical habitat designated. We may

adopt the formal conference report as

the biological opinion when the species

is listed or critical habitat designated, if

no substantial new information or

changes in the action alter the content

of the opinion (see 50 CFR 402.10(d)).

If a species is listed or critical habitat

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

Federal agencies to ensure that 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. Through this consultation , we

would ensure that the permitted actions

do not destroy or adversely modify

critical habitat.

When we issue a biological opinion

concluding that a project is likely to

result in the destruction or adverse

modification of critical habitat, we also

provide reasonable and prudent

alternatives to the project, if any are

identifiable. ‘‘Reasonable and prudent

alternatives’’ are defined at 50 CFR

402.02 as alternative actions identified

during consultation that can be

implemented in a manner consistent

with the intended purpose of the action,

that are consistent with the scope of the

Federal agency’s legal authority and

jurisdiction, that are economically and

technologically feasible, and that the

Director believes would avoid the

destruction or adverse modification of

critical habitat. Reasonable and prudent

alternatives can vary from slight project

modifications to extensive redesign or

relocation of the project. Costs

associated with implementing a

reasonable and prudent alternative are

similarly variable.

Regulations at 50 CFR 402.16 require

Federal agencies to reinitiate

consultation on previously reviewed

actions in instances where critical

habitat is subsequently designated, and

the Federal agency has retained

discretionary involvement or control

over the action or such discretionary

involvement or control is authorized by

law. Consequently, some Federal

agencies may request reinitiation of

consultation or conference with us on

actions for which formal consultation

has been completed, if those actions

may affect designated critical habitat or

adversely modify or destroy proposed

critical habitat.

Activities on Federal lands that may

affect Deinandra conjugens or its critical

habitat will require section 7

consultation. Activities on private or

State lands requiring a permit from a

Federal agency, such as a permit from

the U.S. Army Corps of Engineers

(Corps) under section 404 of the Clean

Water Act, a section 10(a)(1)(B) permit

from the Service, or some other Federal

action, including funding (e.g., from the

Federal Highway Administration,

32060 Federal Register / Vol. 66, No. 114 / Wednesday, June 13, 2001 / Proposed Rules

Federal Aviation Administration (FAA),

or Federal Emergency Management

Agency (FEMA)); permits from the

Department of Housing and Urban

Development (HUD); activities by INS

on their land or land under their

jurisdiction; activities funded by the

U.S. Environmental Protection Agency

(EPA), Department of Energy (DOE), or

any other Federal agency; regulation of

airport improvement activities by FAA;

and construction of communication

sites licensed by the Federal

Communications Commission (FCC)

will also continue to be subject to the

section 7 consultation process. Federal

actions not affecting listed species or

critical habitat and actions on nonFederal lands that are not federally

funded, authorized, or permitted do not

require section 7 consultation.

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 destroy or

adversely modify critical habitat include

those that appreciably reduce the value

of critical habitat for both the survival

and recovery of Deinandra conjugens.

We note that such activities may also

jeopardize the continued existence of

the species. Activities that, when

carried out, funded or authorized by a

Federal agency, may directly or

indirectly destroy or adversely modify

critical habitat include, but are not

limited to:

(1) Removing, thinning, or destroying

Deinandra conjugens habitat (as defined

in the primary constituent elements

discussion), whether by burning,

mechanical, chemical, or other means

(e.g., plowing, grubbing, grading,

grazing, woodcutting, construction, road

building, mining, herbicide application,

etc.);

(2) Activities that appreciably degrade

or destroy Deinandra conjugens habitat

(and its PCEs), including, but not

limited to, livestock grazing, clearing,

discing, farming, residential or

commercial development, introducing

or encouraging the spread of nonnative

species, off-road vehicle use, and heavy

recreational use;

(3) Appreciably decreasing habitat

value or quality through indirect effects

(e.g., edge effects, invasion of exotic

plants or animals, or fragmentation);

and

(4) Activities that alter watershed

characteristics in ways that would

appreciably alter or reduce the quality

or quantity of surface and subsurface

flow of water needed to maintain

grassland, scrub, and chaparral

communities. These activities could

include, but are not limited to,

maintaining an unnatural fire regime

either through fire suppression or

prescribed fires that are too frequent or

poorly-timed; residential and

commercial development, including

road building and golf course

installations; agricultural activities,

including row crops and livestock

grazing; and vegetation manipulation

such as clearing or grubbing in the

watershed upslope from D. conjugens.

If you have questions regarding

whether specific activities will

constitute adverse modification of

critical habitat, contact the Field

Supervisor, Carlsbad Fish and Wildlife

Office (see ADDRESSES section). Requests

for copies of the regulations on listed

wildlife, and inquiries about

prohibitions and permits may be

addressed to the U.S. Fish and Wildlife

Service, Branch of Endangered Species,

911 NE. 11th Ave., Portland, Oregon

97232 (telephone 503/231–2063;

facsimile 503/231–6243).

To properly portray the effects of

critical habitat designation, we must

first compare the section 7 requirements

for actions that may affect critical

habitat with the requirements for

actions that may affect a listed species.

Section 7 prohibits actions funded,

authorized, or carried out by Federal

agencies from jeopardizing the

continued existence of a listed species

or destroying or adversely modifying the

listed species’ critical habitat. Actions

likely to ‘‘jeopardize the continued

existence’’ of a species are those that

would appreciably reduce the

likelihood of the species’ survival and

recovery, and actions likely to ‘‘destroy

or adversely modify’’ critical habitat are

those that would appreciably reduce the

value of critical habitat for the survival

and recovery of the listed species.

Common to both definitions is an

appreciable detrimental effect on both

survival and recovery of a listed species.

Given the similarity of these definitions,

actions likely to destroy or adversely

modify critical habitat would almost

always result in jeopardy to the species

concerned, particularly when the area of

the proposed action is occupied by the

species concerned. Because we are

designating areas that are occupied

either by standing plants or the

underground seedbank of Deinandra

conjugens, and Federal agencies already

consult with us on activities in areas

where the species may be present to

ensure that their actions do not

jeopardize the continued existence of

the species, the designation of critical

habitat is not likely to result in a

significant regulatory burden above that

already in place due to the presence of

the listed species. Actions on which

Federal agencies consult with us

include, but are not limited to:

(1) Regulation of activities affecting

waters of the U.S. by the Corps under

section 404 of the Clean Water Act;

(2) Regulation of water flows,

damming, diversion, and channelization

by Federal agencies;

(3) Regulation of airport improvement

activities by the FAA jurisdiction;

(4) Road construction, right of way

designation, or regulation of agricultural

activities by Federal agencies;

(5) Development on private lands

requiring permits from other Federal

agencies such as HUD;

(6) Construction of communication

sites licensed by the FCC;

(7) Authorization of Federal grants or

loans;

(8) Construction of roads and fences

along the International Boundary

between the United States and Mexico,

and other activities associated with

immigration enforcement by the INS;

(9) Activities funded by the EPA,

DOE, or any other Federal agency; and

(10) Hazard mitigation and postdisaster repairs funded by the FEMA.

Relationship to Habitat Conservation

Plans and Other Planning Efforts

Exclusions Under Section 4(b)(2)

Subsection 4(b)(2) of the Act allows

us to exclude areas from critical habitat

designation where the benefits of

exclusion outweigh the benefits of

designation, provided the exclusion will

not result in the extinction of the

species. For the following reasons, we

believe that, in most instances, the

benefits of excluding HCPs for which

Deinandra conjugens is a covered

species from critical habitat

designations will outweigh the benefits

of including them.

(1) Benefits of Inclusion

The benefits of including HCP lands

in critical habitat are normally small.

The principal benefit of any designated

critical habitat is that activities in such

habitat that may affect it require

consultation under section 7 of the Act.

Such consultation would ensure that

adequate protection is provided to avoid

adverse modification of critical habitat.

Where HCPs are in place, our

experience indicates that this benefit is

small or non-existent. Currently

approved and permitted HCPs are

already designed to ensure the longterm survival of covered species within

the plan area. Where we have an

approved HCP, lands that we ordinarily

Federal Register / Vol. 66, No. 114 / Wednesday, June 13, 2001 / Proposed Rules 32061

would define as critical habitat for the

covered species will normally be

protected in reserves and other

conservation lands by the terms of the

HCPs and their IAs. These HCPs and IAs

include management measures and

protections for conservation lands that

are crafted to protect, restore, and

enhance their value as habitat for

covered species.

In addition, an HCP application must

itself be consulted upon. While this

consultation will not look specifically at

the issue of adverse modification of

critical habitat, unless critical habitat

has already been designated within the

proposed plan area, it will look at the

very similar concept of jeopardy to the

listed species in the plan area. Because

HCPs, particularly large regional HCPs,

address land use within the plan

boundaries, habitat issues within the

plan boundaries will have been

thoroughly addressed in the HCP and

the consultation on the HCP. Our

experience is also that, under most

circumstances, consultations under the

jeopardy standard will reach the same

result as consultations under the

adverse modification standard.

Implementing regulations (50 CFR part

402) define ‘‘jeopardize the continued

existence of’’ and ‘‘destruction or

adverse modification of’’ in virtually

identical terms. Jeopardize the

continued existence of means to engage

in an action ‘‘that reasonably would be

expected * * * to reduce appreciably

the likelihood of both the survival and

recovery of a listed species.’’

Destruction or adverse modification

means an ‘‘alteration that appreciably

diminishes the value of critical habitat

for both the survival and recovery of a

listed species.’’ Common to both

definitions is an appreciable detrimental

effect on both survival and recovery of

a listed species, in the case of critical

habitat by reducing the value of the

habitat so designated. Thus, actions

satisfying the standard for adverse

modification are nearly always found to

also jeopardize the species concerned,

and the existence of a critical habitat

designation does not materially affect

the outcome of consultation. Additional

measures to protect the habitat from

adverse modification are not likely to be

required.

Further, HCPs typically provide for

greater conservation benefits to a

covered species than section 7

consultations because HCPs assure the

long-term protection and management

of a covered species and its habitat, and

funding for such management through

the standards found in the 5-Point

Policy for HCPs (65 FR 35242) and the

HCP No Surprises regulation (63 FR

8859). Such assurances are typically not

provided by section 7 consultations

which, in contrast to HCPs, often do not

commit the project proponent to long

term special management or protections.

Thus, a consultation typically does not

accord the lands it covers the extensive

benefits an HCP provides.

The development and implementation

of HCPs provide other important

conservation benefits, including the

development of biological information

to guide conservation efforts and assist

in species recovery and the creation of

innovative solutions to conserve species

while allowing for development. The

educational benefits of critical habitat,

including informing the public of areas

that are important for the long-term

survival and conservation of the species,

are essentially the same as those that

would occur from the public notice and

comment procedures required to

establish an HCP, as well as the public

participation that occurs in the

development of many regional HCPs.

For these reasons, then, we believe that

designation of critical habitat has little

benefit in areas covered by HCPs.

(2) Benefits of Exclusion

The benefits of excluding HCPs from

being designated as critical habitat may

be more significant. They include

relieving landowners, communities and

counties of any additional minor

regulatory review that might be imposed

by critical habitat. Many HCPs,

particularly large regional HCPs, take

many years to develop and, upon

completion, become regional

conservation plans that are consistent

with the recovery of covered species.

Most regional plans benefit many

species, both listed and unlisted.

Imposing an additional regulatory

review after HCP completion may

jeopardize conservation efforts and

partnerships in many areas and could be

viewed as a disincentive to those

developing HCPs. Excluding HCPs

provides us with an opportunity to

streamline regulatory compliance and

confirms regulatory assurances for HCP

participants.

A related benefit of excluding HCPs is

that it would encourage the continued

development of partnerships with HCP

participants, including States, local

governments, conservation

organizations, and private landowners,

that together, can implement

conservation actions we would be

unable to accomplish alone. By

excluding areas covered by HCPs from

critical habitat designation, we preserve

these partnerships, and, we believe, set

the stage for more effective conservation

actions in the future.

In general, then, we believe the

benefits of critical habitat designation to

be small in areas covered by approved

HCPs. We also believe that the benefits

of excluding HCPs from designation are

significant. Weighing the small benefits

of inclusion against the benefits of

exclusion, including the benefits of

relieving property owners of an

additional layer of approvals and

regulation, together with the

encouragement of conservation

partnerships, would generally result in

HCPs being excluded from critical

habitat designation under section 4(b)(2)

of the Act.

Not all HCPs are alike with regard to

species coverage and design. Within this

general analytical framework, we need

to evaluate completed and legally

operative HCPs in which Deinandra

conjugens is a covered species on a

case-by-case basis to determine whether

the benefits of excluding these

particular areas outweigh the benefits of

including them.

Section 4(b)(2) Evaluation of Specific

HCPs

We expect that critical habitat may be

used as a tool to identify those areas

essential for the conservation of the

species, and we will encourage

development of HCPs for such areas on

non-Federal lands. Habitat conservation

plans currently under development are

intended to provide for protection and

management of habitat areas essential

for the conservation of Deinandra

conjugens, while directing development

and habitat modification to nonessential

areas of lower habitat value.

Only HCPs within or adjacent to the

boundaries of the proposed critical

habitat units are discussed herein.

Those approved and legally operative

HCPs that provide coverage for

Deinandra conjugens have been

excluded from this proposed

designation.

We have worked with local

jurisdictions to complete several HCPs

that include areas where the species

occurs. These HCPs include the San

Diego Gas and Electric HCP and two

Subarea Plans under the MSCP. Both

the City of San Diego’s Subarea Plan and

the County of San Diego’s Subarea Plan

have received coverage for Deinandra

conjugens. The San Diego MSCP

encompasses approximately 236,000 ha

(582,000 ac) of land in southwestern

San Diego County, and involves

multiple jurisdictions. Approximately

69,600 ha (172,000 ac) are targeted to be

conserved within the preserve system.

The Service and the California

Department of Fish and Game approved

the overall MSCP and the City of San

32062 Federal Register / Vol. 66, No. 114 / Wednesday, June 13, 2001 / Proposed Rules

Diego’s Subarea Plan in July 1997. The

County of San Diego’s plan was

approved in 1998. San Diego Gas and

Electric, which has easements

throughout the MSCP, completed its

plan in 1995.

We find that the benefits of excluding

lands covered by these HCPs would be

significant in preserving positive

relationships with our conservation

partners, lessening potential additional

regulatory review and potential

economic burdens, reinforcing the

regulatory assurances provided for in

the implementing agreements for the

approved HCPs, and providing for more

established and cooperative

partnerships for future conservation

efforts.

In summary, the benefits of including

these approved HCPs in critical habitat

for Deinandra conjugens include

increased educational benefits and

minor additional management

protections and measures. The benefits

of excluding these HCPs from

designated critical habitat for D.

conjugens include additional

conservation measures for this and other

listed species, preservation of

partnerships that may lead to future

conservation, and the avoidance of the

minor regulatory and economic burdens

associated with the designation of

critical habitat. Therefore, we believe

the benefits of exclusion outweigh the

benefits of including these areas.

Furthermore, we have determined that

these exclusions will not result in the

extinction of the species. We have

already completed section 7

consultation on the impacts of these

HCPs on the species. We determined

that the approved HCPs will not

jeopardize the continued existence of D.

conjugens, which means that they will

not appreciably reduce the likelihood of

the survival and recovery of the species.

The Sweetwater Authority is

currently working on an HCP and the

City of Chula Vista is expected to

complete their HCP subarea planning

processes in the near future. We have

worked and continue to work closely

with the City of Chula Vista on the

design of their preserve, specifically in

relation to the conservation of

Deinandra conjugens. The City of Chula

Vista’s draft HCP proposes to conserve

many of the large, essential D. conjugens

populations, areas for connectivity

within and among these populations,

habitat to support pollinators and fruit

dispersal agents, and includes criteria

for conservation of D. conjugens within

certain areas that have not yet been

surveyed. The majority of the draft

preserve contains clay soils and the

appropriate vegetation types for D.

conjugens.

In the event that future HCPs, in

addition to those under development by

City of Chula Vista and Sweetwater

Authority, covering Deinandra

conjugens are developed within the

boundaries of designated critical

habitat, we will work with applicants to

ensure that the HCPs provide for

protection and management of habitat

areas essential for the conservation of D.

conjugens by either directing

development and habitat modification

to nonessential areas or appropriately

modifying activities within essential

habitat areas so that such activities will

not destroy or adversely modify the

primary constituent elements. The HCP

development process provides an

opportunity for more intensive data

collection and analysis regarding the

use of particular habitat areas by D.

conjugens. The process also enables us

to conduct detailed evaluations of the

importance of such lands to the long

term survival of the species in the

context of constructing a biologically

configured system of interlinked habitat

blocks. We fully expect that HCPs

undertaken by local jurisdictions (e.g.,

counties, cities) and other parties will

identify, protect, and provide

appropriate management for those

specific lands within the boundaries of

the plans that are essential for the longterm conservation of the species. We

believe and fully expect that our

analyses of these proposed HCPs and

proposed permits under section 7 will

show that covered activities carried out

in accordance with the provisions of the

HCPs and biological opinions will not

result in destruction or adverse

modification of critical habitat.

We will provide technical assistance

and work closely with applicants with

respect to HCPs currently under

development and future HCPs to

identify lands essential for the long-term

conservation of Deinandra conjugens

and appropriate management for those

lands. The minimization and mitigation

measures provided under these HCPs

are expected to protect the essential

habitat lands proposed as critical habitat

in this rule. If an HCP that addresses D.

conjugens as a covered species is

ultimately approved, we will reassess

the critical habitat boundaries in light of

the HCP. We intend to undertake this

review when the HCP is approved, but

funding and priority constraints may

influence the timing of such a review.

Should additional information

become available that changes our

analysis of the benefits of excluding any

of these (or other) areas compared to the

benefits of including them in the critical

habitat designation, we may revise this

proposed designation accordingly.

Similarly, if new information indicates

any of these areas should not be

included in the critical habitat

designation because they no longer meet

the definition of critical habitat, we may

revise this proposed critical habitat

designation.

Economic Analysis

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

to designate critical habitat on the basis

of the best scientific and commercial

information available, and to consider

the economic and other relevant

impacts of designating a particular area

as critical habitat. We may exclude areas

from critical habitat upon a

determination that the benefits of such

exclusions outweigh the benefits of

specifying such areas as critical habitat.

We cannot exclude such areas from

critical habitat when such exclusion

will result in the extinction of the

species. We will conduct an analysis of

the economic impacts of designating

these areas as critical habitat prior to a

final determination. When completed,

we will announce the availability of the

draft economic analysis with a notice in

the Federal Register, and we will open

a public comment period on the draft

economic analyses and proposed rule at

that time.

Public Comments Solicited

We intend that any final action

resulting from this proposal to be as

accurate and effective as possible.

Therefore, we solicit comments or

suggestions from the public, other

concerned governmental agencies, the

scientific community, industry, or any

other interested party concerning this

proposed rule. We particularly seek

comments concerning:

(1) The reasons why any habitat

should or should not be determined to

be critical habitat as provided by section

4 of the Act, including whether the

benefits of designation will outweigh

any threats to the species due to

designation;

(2) Specific information on the

amount and distribution of Deinandra

conjugens habitat, and what habitat is

essential to the conservation of the

species and why;

(3) Land use practices and current or

planned activities in the subject areas

and their possible impacts on proposed

critical habitat;

(4) Any foreseeable economic or other

impacts resulting from the proposed

designation of critical habitat, in

particular, any impacts on small entities

or families; and,

Federal Register / Vol. 66, No. 114 / Wednesday, June 13, 2001 / Proposed Rules 32063

(5) Economic and other values

associated with designating critical

habitat for Deinandra conjugens, such

as those derived from non-consumptive

uses (e.g., hiking, camping, birdwatching, enhanced watershed

protection, improved air quality,

increased soil retention, ‘‘existence

values,’’ and reductions in

administrative costs); and

(6) Whether our approach to critical

habitat designation could be improved

or modified in any way to provide for

greater public participation and

understanding, or to assist us in

accommodating public concern and

comments.

If you wish to comment on this

proposed rule, you may submit your

comments and materials by any one of

several methods (see ADDRESSES

section). If submitting comments by

electronic format, please submit them in

ASCII file format and avoid the use of

special characters and encryption.

Please include ‘‘Attn: 1018–AH00’’ and

your name and return e-mail address in

your e-mail message. Please note that

the e-mail address will be closed out at

the termination of the public comment

period. If you do not receive

confirmation from the system that we

have received your 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 home address, which

we will honor to the extent allowable by

law. In some circumstances, we would

withhold from the rulemaking record a

respondent’s identity, as allowable by

law. If you wish us to withhold your

name and/or address, you must state

this request prominently at the

beginning of your comment. However,

we will not consider anonymous

comments. To the extent consistent with

applicable law, 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.

Comments and materials received will

be available for public inspection, by

appointment, during normal business

hours at the above address.

Peer Review

In accordance with our policy

published on July 1, 1994 (59 FR

34270), we will seek the expert opinions

of at least three appropriate and

independent specialists regarding this

proposed rule. The purpose of such

review is to ensure listing decisions are

based on scientifically sound data,

assumptions, and analyses. We will

send these peer reviewers copies of this

proposed rule immediately following

publication in the Federal Register. We

will invite these peer reviewers to

comment, during the public comment

period, on the specific assumptions and

conclusions regarding the proposed

designation of critical habitat.

We will consider all comments and

information received during the public

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

must be made 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/notices that

are easy to understand. We invite your

comments on how to make this notice

easier to understand including answers

to questions such as the following: (1)

Are the requirements in the notice

clearly stated? (2) Does the notice

contain technical language or jargon that

interferes with the clarity? (3) Does the

format of the notice (grouping and order

of sections, use of headings,

paragraphing, etc.) aid or reduce its

clarity? (4) Is the description of the

notice in the SUPPLEMENTARY

INFORMATION section of the preamble

helpful in understanding the notice?

What else could we do to make the

notice easier to understand?

Send a copy of any comments that

concern how we could make this notice

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:

Execsec@ios.doi.gov.

Required Determinations

Regulatory Planning and Review

In accordance with Executive Order

12866, this document is a significant

rule and was reviewed by the Office of

Management and Budget (OMB) in

accordance with the four criteria

discussed below. We are preparing a

draft analysis of this proposed action,

which will be available for public

comment, to determine the economic

consequences of designating the specific

areas as critical habitat. The availability

of the draft economic analysis will be

announced in the Federal Register and

in local newspapers so that it is

available for public review and

comments.

(a) While we will prepare an

economic analysis to assist us in

considering whether areas should be

excluded pursuant to section 4 of the

Act, we do not believe this rule will

have an annual effect on the economy

of $100 million or more or adversely

affect in a material way the economy, a

sector of the economy, productivity,

competition, jobs, the environment,

public health or safety, or State, local,

or tribal governments or communities.

Therefore, we do not believe a cost

benefit and economic analysis pursuant

to EO 12866 is required.

Deinandra conjugens was listed a

threatened species in 1998. In fiscal

years 1998 through 2001, we have

conducted, or are in the process of

conducting, an estimated eight formal

section 7 consultations with other

Federal agencies to ensure that their

actions will not jeopardize the

continued existence of Deinandra

conjugens. We have also issued section

10(a)(1)(B) incidental take permits for

approximately three projects in areas

where the species occurs.

Under the Act, critical habitat may

not be adversely modified by a Federal

agency action; the Act does not impose

any restrictions through critical habitat

designation on non-Federal persons

unless they are conducting activities

funded or otherwise sponsored,

authorized, or permitted by a Federal

agency. Section 7 requires Federal

agencies to ensure that they do not

jeopardize the continued existence of

the species. Based upon our experience

with the species and its needs, we

conclude that any Federal action or

authorized action that could potentially

cause adverse modification of the

proposed critical habitat would

currently be considered as ‘‘jeopardy’’

under the Act (see Table 2).

Accordingly, the designation of critical

habitat for Deinandra conjugens is not

anticipated to have any significant

incremental impacts on actions

proposed by Federal agencies or nonFederal persons that receive Federal

authorization or funding. Non-Federal

persons that do not have a Federal

‘‘sponsorship’’ of their actions are not

restricted by the designation of critical

habitat.

32064 Federal Register / Vol. 66, No. 114 / Wednesday, June 13, 2001 / Proposed Rules

(b) This rule is not expected to create

inconsistencies with other agencies’

actions. As discussed above, Federal

agencies have been required to ensure

that their actions do not jeopardize the

continued existence of Deinandra

conjugens since the listing in 1998. The

prohibition against adverse modification

of critical habitat is expected to impose

few, if any, additional restrictions to

those that currently exist. Because of the

potential for impacts on other Federal

agency activities, we will continue to

review this action for any

inconsistencies with other Federal

agencies’ actions.

(c) This rule is not expected to

materially affect entitlements, grants,

user fees, loan programs, or the rights

and obligations of their recipients.

Federal agencies are currently required

to ensure that their activities do not

jeopardize the continued existence of

the species, and as discussed above we

do not anticipate that the adverse

modification prohibition (resulting from

critical habitat designation) will have

any significant incremental effects.

(d) OMB has determined that this rule

may raise novel legal or policy issues

and, as a result, this rule has undergone

OMB review.

TABLE 2.—IMPACTS OF DEINANDRA CONJUGENS LISTING AND CRITICAL HABITAT DESIGNATION

Categories of activities Activities potentially affected by species listing only 1

Additional activities potentially affected by critical

habitat designation 2

Federal Activities Potentially

Affected 3.

Activities the Federal Government carries out such as removing, thinning, or destroying Deinandra conjugens habitat (as defined in the primary constituent elements discussion), whether by burning or mechanical, chemical, or other means

(e.g., woodcutting, grubbing, grading, overgrazing, construction, road building,

mining, herbicide application, etc.) and appreciably decreasing habitat value or

quality through indirect effects (e.g., edge effects, invasion of exotic plants or animals, or fragmentation.

None.

Private Activities Potentially

Affected 4.

Activities such as removing, thinning, or destroying Deinandra conjugens habitat

(as defined in the primary constituent elements discussion), whether by burning

or mechanical, chemical, or other means (e.g., woodcutting, grubbing, grading,

overgrazing, construction, road building, mining, herbicide application, etc.) and

appreciably decreasing habitat value or quality through indirect effects (e.g., edge

effects, invasion of exotic plants or animals, or fragmentation that require a Federal action (permit, authorization, or funding).

None.

1This column represents the activities potentially affected by listing the Deinandra conjugens as a threatened species (October 13, 1998, 63

FR 54938) under the Endangered Species Act. 2This column represents the activities potentially affected by the critical habitat designation in addition to those activities potentially affected by

listing the species. 3Activities initiated by a Federal agency.

4Activities initiated by a private entity that may need Federal authorization or funding.

Regulatory Flexibility Act

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 effect 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 an agency certifies the rule will

not have a significant economic impact

on a substantial number of small

entities. SBREFA amended the

Regulatory Flexibility Act to require

Federal agencies to provide a statement

of the factual basis for certifying that a

rule will not have a significant

economic impact on a substantial

number of small entities. The following

discussion explains our determination.

The areas we are proposing as critical

habitat are already occupied, by either

or both standing plants and the seed

bank, by Deinandra conjugens. As a

result, Federal agencies funding,

permitting, or implementing activities

in these areas are already required to

consult with us under section 7 of the

Act, to avoid jeopardizing the continued

existence of this species. While the

designation of critical habitat will

require that agencies ensure, through

section 7 consultation, that their

activities do not destroy or adversely

modify critical habitat, for the reasons

discussed above we do not believe this

will result in any additional regulatory

burden on the Federal agencies or their

applicants. As a result, this proposed

rule, if finalized, would not result in a

significant economic burden on Federal

agencies or their applicants.

Therefore, we are certifying that this

proposed rule is not expected to have a

significant adverse impact on a

substantial number of small entities.

Thus, no regulatory flexibility analysis

is necessary.

Executive Order 13211

On May 18, 2001, the President issued

an Executive Order (EO 13211) which

applies to regulations that significantly

affect energy supply, distribution, and

use. Executive Order 13211 requires

agencies to prepare Statements of

Energy Effects when undertaking certain

actions. Because this proposed rule is

not expected to significantly affect

energy supplies, distribution, or use,

this action is not a significant energy

action and no Statement of Energy

Effects is required.

Unfunded Mandates Reform Act (2

U.S.C. 1501 et seq.)

In accordance with the Unfunded

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

seq.):

(a) This rule, as proposed, will not

‘‘significantly or uniquely’’ affect small

governments. A Small Government

Agency Plan is not required. Small

governments will only be affected to the

extent that they proposed activities

requiring Federal funds, permits or

other authorization. Activities with a

Federal nexus may not destroy or

adversely modify critical habitat.

However, as discussed in section 1,

these activities are currently subject to

equivalent restrictions as a result of the

listing of the species, and no further

restrictions are anticipated.

(b) This rule, as proposed, will not

produce a Federal mandate of $100

million or greater in any year, that is, it

Federal Register / Vol. 66, No. 114 / Wednesday, June 13, 2001 / Proposed Rules 32065

is not a ‘‘significant regulatory action’’

under the Unfunded Mandates Reform

Act. The designation of critical habitat

imposes no obligations on State or local

governments.

Takings

In accordance with Executive Order

12630, the rule does not have significant

takings implications. A takings

implication assessment is not required.

As discussed above, the designation of

critical habitat affects only Federal

agency actions. The rule will not

increase or decrease current restrictions

on private property concerning

Deinandra conjugens. Due to current

public knowledge of the species’

protection, and the fact that critical

habitat provides no additional

incremental restrictions, we do not

anticipate that property values will be

affected by the critical habitat

designation. While real estate market

values may temporarily decline

following designation, due to the

perception that critical habitat

designation may impose additional

regulatory burdens on land use, we

expect any such impacts to be short

term.

Federalism

In accordance with Executive Order

13132, the rule does not have significant

Federalism effects. A Federalism

assessment is not required. In keeping

with Department of the Interior policy,

we requested information from, and

coordinated development of this critical

habitat designation, with appropriate

State resource agencies in California.

The designation of critical habitat

within the geographic range occupied

by Deinandra conjugens imposes no

additional restrictions to those currently

in place and, therefore, has little

incremental impact on State and local

governments and their activities. The

designation may have some benefit to

these governments in that the areas

essential to the conservation of the

species are more clearly defined, and

the primary constituent elements of the

habitat necessary to the survival of the

species are specifically identified. While

this definition and identification does

not alter where and what federally

sponsored activities may occur, it may

assist these local governments in longrange 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

meets the requirements of sections 3(a)

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

proposing to designate critical habitat in

accordance with the provisions of the

Endangered Species Act. The rule uses

standard property descriptions and

identifies the primary constituent

elements within the designated areas to

assist the public in understanding the

habitat needs of Deinandra conjugens.

Paperwork Reduction Act of 1995 (44

U.S.C. 3501 et seq.)

This rule does not contain any

information collection requirements for

which OMB approval under the

Paperwork Reduction Act is required.

An agency may not conduct or sponsor,

and a person is not required to respond

to, a collection of information unless it

displays a valid OMB Control Number.

National Environmental Policy Act

We have determined we do not need

to prepare an Environmental

Assessment and/or an Environmental

Impact Statement as defined by the

National Environmental Policy Act of

1969 in connection with regulations

adopted pursuant to section 4(a) of the

Endangered Species Act, as amended.

We published a notice outlining our

reason for this determination in the

Federal Register on October 25, 1983

(48 FR 49244). This proposed

determination does not constitute a

major Federal action significantly

affecting the quality of the human

environment.

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), E.O.

13175, and 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 essential for the conservation of

Deinandra conjugens because these

lands do not support populations, or

provide essential habitat. Therefore,

critical habitat for Deinandra conjugens

has not been designated on Tribal lands.

References Cited

A complete list of all references cited

in this proposed rule is available upon

request from the Carlsbad Fish and

Wildlife Office (see ADDRESSES section).

Author

The primary author of this proposed

rule is Mark A. Elvin (see ADDRESSES

section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species,

Exports, Imports, Reporting and

recordkeeping requirements,

Transportation.

Proposed Regulation Promulgation

Accordingly, we proposed 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), remove the entry for

Hemizonia conjugens and add the

following in alphabetical order under

‘‘FLOWERING PLANTS’’ to the List of

Endangered and Threatened Plants to

read as follows:

§ 17.12 Endangered and threatened plants.

* * * * *

(h) * * *

32066 Federal Register / Vol. 66, No. 114 / Wednesday, June 13, 2001 / Proposed Rules

Species

Historic range Family Status When listed Critical habitat

Special

rules Scientific name Common name

FLOWERING PLANTS

*******

Deinandra conjugens

[=Hemizonia

conjugens].

Otay tarplant ........... U.S.A. (CA), Mexico Asteraceae—Sunflower.T 649 17.96(b) NA

*******

3. In § 17.96, as proposed to be

amended at 65 FR 66865, November 7,

2000, add critical habitat for the Otay

tarplant (Deinandra conjugens) under

paragraph (b) by adding an entry for

Deinandra conjugens in alphabetical

order under Asteraceae to read as

follows:

§ 17.96 Critical habitat—plants.

* * * * *

(b) Single-species critical habitat—

flowering plants.

* * * * *

Family Asteraceae: Deinandra

conjugens (Otay tarplant)

(1) Critical habitat units are depicted

for San Diego County, California, on the

maps below.

(2) The primary constituent elements

of critical habitat for Deinandra

conjugens are those habitat components

that are essential for the primary

biological needs of the species. Based on

our current knowledge of this species,

the primary constituent elements for

Deinandra conjugens consist of, but are

not limited to:

(i) Soils with a high clay content

(generally >25 percent) (or clay

intrusions or lenses) that are associated

with grasslands (native, non-native, and

mixed), open coastal sage scrub, or

maritime succulent scrub communities

between 25 m (80 ft) and 300 m (1,000

ft) elevation;

(ii) Plant communities associated with

Deinandra conjugens which include but

are not limited to grasslands (native,

non-native, and mixed), open coastal

sage scrub, and maritime succulent

scrub between 25 and 300 m (80 and

1,000 ft) elevation in southern San

Diego County, California. Species

common to these communities include

Nassella spp. (needlegrasses), Bloomeria

crocea (common goldenstar),

Dichelostemma pulchella (blue dicks),

Chlorogalum spp. (soap plants), Bromus

spp. (brome grasses), Avena spp. (oats),

Deinandra fasciculata (fascicled

tarweed), Lasthenia californica

(common goldfields), Artemisia

californica (California sagebrush),

Eriogonum fasciculatum (flat-top

buckwheat), Lotus scoparius (deer

weed), Salvia spp. (sages), Mimulus

aurantiacus (bush monkeyflower),

Malacothamnus fasciculatum

(bushmallow), Malosma laurina (laurel

sumac), Rhus ovata (sugar bush), R.

integrifolia (lemonade berry), Lycium

spp. (boxthorns), Euphorbia misera (cliff

spurge), Simmondsia chinensis (jojoba),

Opuntia spp. (prickly pear and cholla

cactuses), Ferocactus viridescens

(coastal barrel cactus), Ambrosia

chenopodiifolia (San Diego bur sage),

and Dudleya spp. (live-forevers). These

plant communities contain natural

openings that provide nesting, foraging,

and dispersal sites for D. conjugens

pollen and seed dispersal agents. These

openings may have soil inclusions that

contain a significantly higher

concentration of sandy soils than the

adjacent clay soils.

(iii) Critical habitat does not include

non-Federal lands covered by a legally

operative Habitat Conservation Plan

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

Act in which Deinandra conjugens is a

covered species on or before June 13,

2001.

(iv) Existing features and structures,

such as buildings, paved or unpaved

roads, and other landscaped areas not

containing primary constituent

elements, are not considered critical

habitat. Federal actions limited to those

areas, therefore, would not trigger a

section 7 consultation, unless they affect

the species and/or primary constituent

elements in adjacent critical habitat.

Federal Register / Vol. 66, No. 114 / Wednesday, June 13, 2001 / Proposed Rules 32067

BILLING CODE 4310–55–U

Map Unit 1: Sweetwater/Proctor

Valley, San Diego County, California.

Unit 1a: From USGS 1:24,000

quadrangle map Jamul Mountains,

beginning at the San Diego National

Wildlife Refuge (SDNWR) boundary at

UTM NAD27 x-coordinate 505100;

thence south following UTM NAD27

coordinates (E, N): 505100, 3620400;

505000, 3620400; 505000, 3620200;

504900, 3620200; 504900, 3620100;

504800, 3620100; 504800, 3620000;

504700, 3620000; 504700, 3619900;

504600, 3619900; 504600, 3619700;

504500, 3619700; 504500, 3619600;

504400, 3619600; 504400, 3619500;

504300, 3619500; 504300, 3619400;

504100, 3619400; 504100, 3619300;

504000, 3619300; thence south to the

SDNWR boundary at UTM x-coordinate

504000; thence south following the

SDNWR boundary returning to the point

of beginning on the SDNWR boundary

at UTM x-coordinate 505100.

Unit 1b: From USGS 1:24,000

quadrangle maps National City and

Jamul Mountains, beginning at the

Sweetwater Reservoir at UTM NAD27 ycoordinate 3618500; thence east and

following UTM NAD27 coordinates

503000, 3618500; 503000, 3616000;

503100, 3616000; 503100, 3615400;

503200, 3615400; 503200, 3615300;

503600, 3615300; 503600, 3615400;

503700, 3615400; 503700, 3615600;

503900, 3615600; 503900, 3615800;

thence east to the Otay Water District

(OWD) boundary at UTM NAD27 ycoordinate 3615800; thence north

following the OWD boundary to the City

of Chula Vista Preserve Design (CCVPD)

boundary; thence east following the

CCVPD boundary to UTM NAD27 xcoordinate 505900; thence north

following UTM NAD27 coordinates

505900, 3615900; 506000, 3615900;

506000, 3616000; 506700, 3616000,

506700, 3616100; thence east to the

SDNWR boundary at UTM NAD27 ycoordinate 3616100; thence east

following the SDNWR boundary to UTM

NAD27 x-coordinate 507200; thence

north following UTM NAD27

coordinates 507200, 3616200; 507400,

3616200; 507400, 3616300; 507500,

3616300; 507500, 3616400; 507600,

3616400; thence north to the County of

San Diego Major Amendment (CSDMjA)

boundary at UTM NAD27 x-coordinate

507600; thence east following the

CSDMjA boundary to the SDNWR

boundary; thence south following the

SDNWR boundary to the CSDMjA

boundary; thence south following the

CSDMjA boundary to UTM NAD27 xcoordinate 506100; thence south

following UTM NAD27 coordinates

506100, 3613100; 506000, 3613100;

thence north to the City of Chula Vista

(CCV) boundary at UTM NAD27 xcoordinate 506000; thence northwest

following the CCV boundary to UTM

NAD27 x-coordinate 505700; thence

north following UTM NAD27

coordinates 505700, 3612800; 505600,

3612800; 505600, 3613200; 505500,

3613200; 505500, 3613300; 505400,

3613300; 505400, 3613400; 505300,

3613400; 505300, 3613500; 505200,

3613500; 505200, 3613700; 505300,

3613700; 505300, 3613600; 505400,

3613600; 505400, 3613500; 505500,

3613500; 505500, 3613800; 505300,

32068 Federal Register / Vol. 66, No. 114 / Wednesday, June 13, 2001 / Proposed Rules

3613800; 505300, 3614300; 505100,

3614300; 505100, 3614700; 505400,

3614700; 505400, 3614900; 505200,

3614900; 505200, 3615100; thence north

to the CCVPD boundary at UTM NAD27

x-coordinate 505200; thence west

following the CCVPD boundary to the

OWD boundary; thence south following

the OWD boundary to UTM NAD27 xcoordinate 504600; thence north

following UTM NAD27 coordinates

504600, 3614600; 504500, 3614600;

504500, 3615500; 504400, 3615500;

504400, 3615700; 504300, 3615700;

504300, 3615800; 504200, 3615800;

504200, 3615700; 504100, 3615700;

504100, 3615200; 504000, 3615200;

504000, 3615100; 503900, 3615100;

503900, 3614900; 503800, 3614900;

503800, 3614800; 503900, 3614800;

503900, 3614600; 503800, 3614600;

503800, 3614400; 503700, 3614400;

thence south to the OWD boundary at

UTM NAD27 x-coordinate 503700;

thence west following the OWD

boundary to the Multiple Habitat

Planning Area (MHPA) boundary;

thence west following the MHPA to the

SDNWR boundary; thence south

following the SDNWR boundary to UTM

NAD27 y-coordinate 3616100; thence

west following UTM NAD27

coordinates 501200, 3616100; 501200,

3615800; 500800, 3615800; thence north

to the Sweetwater Authority Water

District (SWAWD) boundary at UTM

NAD27 x-coordinate 500800; thence

west following the SWAWD boundary

to the County of San Diego Minor

Amendment (CSDMnA) boundary;

thence west following the CSDMnA

boundary to the SWAWD boundary;

thence west following the SWAWD

boundary to approximately UTM

NAD27 coordinates 5014000, 3618650

where the SWAWD meets the

Sweetwater Reservoir shoreline; thence

south following the Sweetwater

Reservoir shoreline back to the point of

beginning at UTM NAD27 y-coordinate

3618500; excluding lands bounded by

the CCVPD boundary at UTM NAD27 xcoordinate 505800; thence east

following the CCVPD boundary to UTM

NAD27 x-coordinate 506100; thence

north and following UTM NAD27

coordinates 506100, 3614700; 505700,

3614700; 505700, 3615300; 505800,

3615300; thence north returning to the

point of beginning on the CCVPD

boundary at UTM NAD27 x-coordinate

505800; excluding the proposed State

Route 125 easement.

Unit 1 c and d: From USGS 1:24,000

quadrangle map Jamul Mountains, the

lands bounded by the CCVPD boundary

at Horseshoe Bend and Gobblers Knob.

Map Unit 2: Chula Vista, San Diego

County, California.

Unit 2a: From USGS 1:24,000

quadrangle maps National City, the

lands bounded by the CCVPD boundary

in Long Canyon and between UTM

NAD27 coordinates 497900 and 499700.

Unit 2b and c: From USGS 1:24,000

quadrangle map National City, the lands

bounded by the CCVPD boundary south

of Otay Lakes Road and between UTM

Federal Register / Vol. 66, No. 114 / Wednesday, June 13, 2001 / Proposed Rules 32069

NAD27 x-coordinates 497300 and

499500.

Unit 2d: From USGS 1:24,000

quadrangle map National City, the lands

bounded by the CCVPD boundary in

Rice Canyon and between UTM NAD27

x-coordinates 496900 and 499100.

Unit 2e: From USGS 1:24,000

quadrangle maps National City and

Imperial Beach, the lands bounded by

the CCVPD boundary in Telegraph

Canyon and between UTM NAD27 xcoordinates 498100 and 499300.

Unit 2f and h: From USGS 1:24,000

quadrangle map Imperial Beach, the

lands bounded by the CCVPD boundary

in Poggi Canyon and between UTM

NAD27 x-coordinates 497400 and

499000.

Unit 2g: From USGS 1:24,000

quadrangle map Imperial Beach,

beginning at the CCV boundary at UTM

NAD27 x-coordinate 498600; thence

south following UTM NAD27

coordinates 498600, 3607300; 498400,

3607300; 498400, 3607200; 498300,

3607200; 498300, 3606900; 498500,

3606900; thence south to the CCV

boundary at UTM NAD27 x-coordinate

498500; thence west following the CCV

boundary to the CCVPD boundary;

thence west following the CCVPD

boundary to the CCV boundary; thence

east returning to the point of beginning

on the CCV boundary at UTM NAD27 xcoordinate 498600.

Map Unit 3: Otay Valley/Big

Murphy’s, San Diego County, California.

Unit 3a: From USGS 1:24,000

quadrangle maps Imperial Beach, Otay

Mesa, and Jamul Mountains beginning

on the CCVPD boundary at UTM NAD27

x-coordinate 499900; thence east

following the CCVPD boundary to UTM

NAD27 x-coordinate 506400; thence

south following the UTM NAD27

coordinates 506400, 3607200; 506300,

3607200; 506300, 3607100; 505600,

3607100; 505600, 3606900; 505300,

3606900; 505300, 3606700; 505100,

3606700; 505100, 3606600; 504900,

3606600; 504900, 3606500; 504800,

3606500; 504800, 3606600; 504700,

3606600; 504700, 3606700; 504500,

3606700; 504500, 3606600; 504400,

3606600; 504400, 3606500; 504300,

3606500; 504300, 3606300; thence west

to the CCVPD boundary at UTM ycoordinate 3606300; thence north

following the CCVPD boundary to UTM

NAD27 x-coordinate 502400; thence

south following UTM NAD27

coordinates 502100, 3605600; 502100,

3605500; 501900, 3605500; 501900,

3605300; 502800, 3605300; 502800,

3605400; thence east to the CCVPD

boundary at UTM NAD27 y-coordinate

3605400; thence east following the

CCVPD boundary to UTM NAD27 xcoordinate 504500; thence north

following UTM NAD27 coordinates

504500, 3606200; 504800, 3606200;

32070 Federal Register / Vol. 66, No. 114 / Wednesday, June 13, 2001 / Proposed Rules

504800, 3606300; 505000, 3606300;

505000, 3606400; 505100, 3606400;

505100, 3606500; 505200, 3606500;

505200, 3606600; 505700, 3606600;

505700, 3606500; 505800, 3606500;

505800, 3606600; 506300, 3606600;

506300, 3606800; 506600, 3606800;

506600, 3606900; thence east to the

CCVPD boundary at UTM NAD27 ycoordinate 3606900; thence south

following the CCVPD boundary to the

CCV boundary; thence west following

the CCV boundary to the CCVPD

boundary; thence north following the

CCVPD boundary to the UTM NAD27 ycoordinate 3604700; thence west

following UTM NAD27 coordinates

500400, 3604700; 500400, 3604800;

500100, 3604800; 500100, 3604700;

thence west to the CCV boundary at

UTM NAD27 y-coordinate 3604700;

thence north along the CCV boundary to

the CCVPD boundary; thence east

following the CCVPD boundary to UTM

NAD27 x-coordinate 501300; thence

north following UTM NAD27

coordinates 501300, 3605300; 501400,

3605300; thence north to the CCVPD

boundary at UTM NAD27 x-coordinate

501400; thence north following the

CCVPD boundary to UTM NAD27 xcoordinate 501600; thence north

following UTM NAD27 coordinates

501600, 3605900; 501500, 3605900;

501500, 3606000; 501300, 3606000;

501300, 3606100; thence north to the

CCVPD boundary at UTM NAD27 xcoordinate 501300; thence east

following the CCVPD boundary to UTM

NAD27 y-coordinate 3605700; thence

east following UTM NAD27 coordinates

500600, 3605700; 500600, 3605800;

500100, 3605800; 500100, 3605900;

499900, 3605900; thence north

returning to the point of beginning on

the CCVPD boundary at UTM NAD27 xcoordinate 499900; excluding the

proposed State Route 125 easement.

Unit 3b: From USGS 1:24,000

quadrangle map Otay Mesa, the

southern half of the Immigration and

Nationalization Service land at

Brownfield.

Unit 3c: From USGS 1:24,000

quadrangle map Otay Mesa, beginning

on the CSDMjA boundary at UTM

NAD27 y-coordinate 3604000; thence

south following the CSDMjA boundary

to UTM NAD27 x-coordinate 509200;

thence south following UTM NAD27

coordinates 509200, 3602900; 509000,

3602900; 509000, 3602800; 509100,

3602800; 509100, 3602700; 508200,

3602700; 508200, 3603200; 508100,

3603200; 508100, 3603400; 508000,

3603400; 508000, 3603600; 508100,

3603600; 508100, 3603700; 508200,

3603700; 508200, 3603800; 508400,

3603800; 508400, 3604000; returning to

the point of beginning on the CSDMjA

boundary at UTM NAD27 y-coordinate

3604000.

Federal Register / Vol. 66, No. 114 / Wednesday, June 13, 2001 / Proposed Rules 32071

Dated: June 1, 2001.

Marshall P. Jones, Jr.,

Acting Assistant Secretary for Fish and

Wildlife and Parks.

[FR Doc. 01–14309 Filed 6–12–01; 8:45 am]

BILLING CODE 4310–55–C