67956 Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Proposed Rules 

substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act, 5 U.S.C. 601, et seq., 

because the rule addresses internal DoD 

responsibilities for performance of 

contract administration functions. 

Therefore, DoD has not performed an 

initial regulatory flexibility analysis. 

DoD invites comments from small 

businesses and other interested parties. 

DoD also will consider comments from 

small entities concerning the affected 

DFARS subpart in accordance with 5 

U.S.C. 610. Such comments should be 

submitted separately and should cite 

DFARS Case 2003–D051. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the rule does not 

impose any information collection 

requirements that require the approval 

of the Office of Management and Budget 

under 44 U.S.C. 3501, et seq. 

List of Subjects in 48 CFR Part 242 

Government procurement. 

Michele P. Peterson, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, DoD proposes to amend 48 

CFR part 242 as follows: 

1. The authority citation for 48 CFR 

part 242 continues to read as follows: 

Authority: 41 U.S.C. 421 and 48 CFR 

Chapter 1. 

PART 242—CONTRACT 

ADMINISTRATION AND AUDIT 

SERVICES 

2. Section 242.302 is revised to read 

as follows: 

242.302 Contract administration functions. 

(a)(4) Also, review and evaluate—

(A) Contractor estimating systems (see 

FAR 15.407–5); and 

(B) Contractor material management 

and accounting systems under Subpart 

242.72. 

(7) See 242.7503 for ACO 

responsibilities with regard to receipt of 

an audit report identifying significant 

accounting system or related internal 

control deficiencies. 

(9) For additional contract 

administration functions related to 

IR&D/B&P projects performed by major 

contractors, see 242.771–3(a). 

(12) Also perform all payment 

administration in accordance with any 

applicable payment clauses. 

(13)(A) Do not delegate the 

responsibility to make payments to the 

Defense Contract Management Agency 

(DCMA). 

(B) Follow the procedures at PGI 

242.302(a)(13)(B) for designation of 

payment offices. 

(39) See 223.370 for contract 

administration responsibilities on 

contracts for ammunition and 

explosives. 

(67) Also support program offices and 

buying activities in precontractual 

efforts leading to a solicitation or award. 

(S–70) Serve as the single point of 

contact for all Single Process Initiative 

(SPI) Management Council activities. 

The ACO shall negotiate and execute 

facilitywide class modifications and 

agreements for SPI processes, when 

authorized by the affected components. 

(S–71) DCMA has responsibility for 

reviewing earned value management 

system (EVMS) plans and verifying 

initial and continuing contractor 

compliance with DoD EVMS criteria. 

The contracting officer shall not retain 

this function. 

(b)(S–70) Issue, negotiate, and execute 

orders under basic ordering agreements 

for overhaul, maintenance, and repair. 

[FR Doc. 05–22113 Filed 11–8–05; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AT92 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for the Endangered Monardella 

linoides ssp. viminea (Willowy 

Monardella) 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

designate critical habitat for the 

endangered Monardella linoides ssp. 

viminea (willowy monardella) under the 

Endangered Species Act of 1973, as 

amended (Act). We have determined 

that approximately 2,539 acres (ac) 

(1,028 hectares (ha)) of land within San 

Diego County, California, contain the 

physical and biological features 

essential to the conservation of M. l. ssp. 

viminea. Of that, we are proposing to 

designate as critical habitat 

approximately 115 acres (47 ha) of 

private lands and the Padre Dam 

Municipal Water District lands within 

the City of Santee. We do not include 

Tribal lands in this proposed 

designation. We are exempting or 

considering whether to exclude from 

critical habitat designation the other 

lands that contain the features essential 

to the conservation of M. l. ssp. viminea. 

We fully discuss the exemption and 

exclusions under consideration in the 

preamble of this proposed rule. We are 

soliciting data and comments from the 

public on all aspects of this proposal, 

including the exemption and exclusions 

under consideration. 

DATES: We will accept comments from 

all interested parties until January 9, 

2006. We must receive requests for 

public hearings, in writing, at the 

address shown in the ADDRESSES section 

by December 27, 2005. 

ADDRESSES: If you wish to comment, 

you may submit your comments and 

materials concerning this proposal by 

any one of several methods: 

1. You may submit written comments 

and information to Jim Bartel, Field 

Supervisor, U.S. Fish and Wildlife 

Service, Carlsbad Fish and Wildlife 

Office (CFWO), 6010 Hidden Valley 

Road, Carlsbad, CA 92011. 

2. You may hand-deliver written 

comments to the CFWO, at the address 

given above. 

3. You may send comments by 

electronic mail (e-mail) to 

fw8cfwomolivi@fws.gov. Please see the 

Public Comments Solicited section 

below for file format and other 

information about electronic filing. 

4. You may fax your comments to 

760/431–9624. 

Comments and materials received, as 

well as supporting documentation used 

in the preparation of this proposed rule, 

will be available for public inspection, 

by appointment, during normal business 

hours at the CFWO at the above address. 

Maps showing areas proposed as critical 

habitat, areas under consideration for 

exclusion from critical habitat, and 

areas exempted from critical habitat are 

available for public review and 

comment at the CFWO or on the 

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

FOR FURTHER INFORMATION CONTACT: Jim 

Bartel, Field Supervisor, CFWO at the 

above address (telephone 760/431–9440; 

facsimile 760/431–9624). 

SUPPLEMENTARY INFORMATION: 

Public Comments Solicited 

We intend that any final action 

resulting from this proposal will be as 

accurate and as effective as possible. 

Therefore, comments or suggestions 

from the public, other concerned 

governmental agencies, the scientific 

community, industry, or any other 

interested party concerning this 

proposed rule are hereby solicited. 

Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Proposed Rules 67957 

Comments are particularly sought 

concerning: 

(1) The reasons any habitat should or 

should not be determined to be critical 

habitat as provided by section 4 of the 

Act, including whether the benefit of 

designation will outweigh any threats to 

the species due to designation; 

(2) Specific information on the 

amount and distribution of Monardella 

linoides ssp. viminea habitat, and what 

areas should be included in the 

designations that were occupied at the 

time of listing that contain the features 

that are essential to the conservation of 

the species and why and what areas that 

were not occupied at the time of listing 

are essential to the conservation of the 

species and why; 

(3) Land use designations and current 

or planned activities in the subject areas 

and their possible impacts on proposed 

critical habitat; 

(4) The exclusion from critical habitat 

that we are considering for lands within 

the San Diego MSCP and the BLM Otay 

Mountain Wilderness and the multiple 

agency 1994 MOU under section 4(b)(2) 

of the Act (see Application of Section 

4(a)(3) and Exclusions Under Section 

4(b)(2) of the Act for details, including 

maps, of the San Diego MSCP and Otay 

Mountain Wilderness and MOU). Please 

provide information on the benefits of 

including or excluding these lands from 

the critical habitat designation; 

(5) The exemption from critical 

habitat at MCAS Miramar pursuant to 

section 4(a)(3) of the Act because their 

Integrated Natural Resources 

Management Plan (INRMP) provides a 

benefit to M. l. ssp. viminea. We 

specifically solicit comment concerning 

the exemption of MCAS Miramar under 

section 4(a)(3) of the Act and whether 

their INRMP provides a benefit to the 

species (see Application of Section 

4(a)(3) and Exclusions Under Section 

4(b)(2) of the Act section for a detailed 

discussion and figure of the area). 

(6) Any foreseeable economic, 

national security, or other potential 

impacts resulting from the proposed 

designation and, in particular, any 

impacts on small entities; and 

(7) Whether our approach to 

designating critical habitat could be 

improved or modified in any way to 

provide for greater public participation 

and understanding, or to assist us in 

accommodating public concerns and 

comments. 

If you wish to comment, you may 

submit your comments and materials 

concerning this proposal by any one of 

several methods (see ADDRESSES

section). Please submit Internet 

comments to fw8cfwomolivi@fws.gov in 

ASCII file format and avoid the use of 

special characters or any form of 

encryption. Please also include ‘‘Attn: 

Willowy Monardella’’ in your e-mail 

subject header and your name and 

return address in the body of your 

message. If you do not receive a 

confirmation from the system that we 

have received your Internet message, 

contact us directly by calling our CFWO 

at phone number 760/431–9440. Please 

note that this Internet address will be 

closed at the termination of the public 

comment period. 

Our practice is to make comments, 

including names and home addresses of 

respondents, available for public review 

during regular business hours. 

Individual respondents may request that 

we withhold their home addresses from 

the rulemaking record, which we will 

honor to the extent allowable by law. 

There also may be circumstances in 

which 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 

prominently at the beginning of your 

comment. However, we will not 

consider anonymous comments. We 

will make all submissions from 

organizations or businesses, and from 

individuals identifying themselves as 

representatives or officials of 

organizations or businesses, available 

for public inspection in their entirety. 

Comments and materials received will 

be available for public inspection, by 

appointment, during normal business 

hours at the above address. 

Designation of Critical Habitat Provides 

Little Additional Protection to Species 

In 30 years of implementing the Act, 

the Service has found that the 

designation of statutory critical habitat 

provides little additional protection to 

most listed species, while consuming 

significant amounts of available 

conservation resources. The Service’s 

present system for designating critical 

habitat has evolved since its original 

statutory prescription into a process that 

provides little real conservation benefit, 

is driven by litigation and the courts 

rather than biology, limits our ability to 

fully evaluate the science involved, 

consumes enormous agency resources, 

and imposes huge social and economic 

costs. The Service believes that 

additional agency discretion would 

allow our focus to return to those 

actions that provide the greatest benefit 

to the species most in need of 

protection. 

Role of Critical Habitat in Actual 

Practice of Administering and 

Implementing the Act 

While attention to and protection of 

habitat is paramount to successful 

conservation actions, we have 

consistently found that, in most 

circumstances, the designation of 

critical habitat is of little additional 

value for most listed species, yet it 

consumes large amounts of conservation 

resources. Sidle (1987) stated, ‘‘Because 

the Act can protect species with and 

without critical habitat designation, 

critical habitat designation may be 

redundant to the other consultation 

requirements of section 7.’’ Currently, 

only 470 species, or 37.5 percent of the 

1,253 listed species in the U.S. under 

the jurisdiction of the Service, have 

designated critical habitat. 

We address the habitat needs of all 

1,253 listed species through 

conservation mechanisms such as 

listing, section 7 consultations, the 

Section 4 recovery planning process, the 

Section 9 protective prohibitions against 

take of animal species and other 

unauthorized actions regarding plants, 

Section 6 funding to the States, and the 

Section 10 incidental take permit 

process. The Service believes that it is 

these measures that may make the 

difference for the conservation of many 

species. 

We note, however, that the August 6, 

2004 Ninth Circuit judicial opinion, 

(Gifford Pinchot Task Force v. United 

States Fish and Wildlife Service) found 

our definition of adverse modification 

was invalid. In response to the decision, 

the Director has provided guidance to 

the Service based on the statutory 

language. In this rule, our analysis of the 

consequences and relative costs and 

benefits of the critical habitat 

designation is based on application of 

the statute consistent with the 9th 

Circuit’s ruling and the Director’s 

guidance. 

Procedural and Resource Difficulties in 

Designating Critical Habitat 

We have been inundated with 

lawsuits for our failure to designate 

critical habitat, and we face a growing 

number of lawsuits challenging critical 

habitat determinations once they are 

made. These lawsuits have subjected the 

Service to an ever-increasing series of 

court orders and court-approved 

settlement agreements, compliance with 

which now consumes nearly the entire 

listing program budget. This leaves the 

Service with little ability to prioritize its 

activities to direct scarce listing 

resources to the listing program actions 

67958 Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Proposed Rules 

with the most biologically urgent 

species conservation needs. 

The consequence of the critical 

habitat litigation activity is that limited 

listing funds are used to defend active 

lawsuits, to respond to Notices of Intent 

(NOIs) to sue relative to critical habitat, 

and to comply with the growing number 

of adverse court orders. As a result, 

listing petition responses, the Service’s 

own proposals to list critically 

imperiled species, and final listing 

determinations on existing proposals are 

all significantly delayed. 

The accelerated schedules of court 

ordered designations have left the 

Service with almost no ability to 

provide for adequate public 

participation or to ensure a defect-free 

rulemaking process before making 

decisions on listing and critical habitat 

proposals due to the risks associated 

with noncompliance with judiciallyimposed deadlines. This in turn fosters 

a second round of litigation in which 

those who fear adverse impacts from 

critical habitat designations challenge 

those designations. The cycle of 

litigation appears endless, is very 

expensive, and in the final analysis 

provides relatively little additional 

protection to listed species. 

The costs resulting from the 

designation include legal costs, the cost 

of preparation and publication of the 

designation, the analysis of the 

economic effects and the cost of 

requesting and responding to public 

comment, and in some cases the costs 

of compliance with the National 

Environmental Policy Act (NEPA). None 

of these costs result in any benefit to the 

species that is not already afforded by 

the protections of the Act enumerated 

earlier, and they directly reduce the 

funds available for direct and tangible 

conservation actions. 

Background 

In this proposed rule, we discuss only 

those topics directly relevant to the 

designation of critical habitat. For more 

information on Monardella linoides ssp. 

viminea, refer to the final rule listing the 

species as endangered published in the 

Federal Register on October 13, 1998 

(63 FR 54938). 

Life History 

Monardella linoides ssp. viminea is a 

small perennial, herbaceous subshrub 

with aromatic foliage and several erect 

stems extending from a woody base 

(Munz 1968; 63 FR 54937). It is a 

member of the Lamiaceae (mint family) 

and flowers from June to August (Munz 

1968). Because M. l. ssp. viminea 

branches arise from trailing stems, 

plants tend to grow in groupings or 

‘‘clumps,’’ rather than as discrete plants 

(Epling 1925). Seeds are small with a 

hard seed coat and may fall directly 

below existing plants after setting (Mike 

Kelly, pers. comm. to Carolyn 

Lieberman, U.S. Fish and Wildlife 

Service, 2003). Little is known about 

how the species disperses, however, 

seeds and vegetative shoots are believed 

to be transported by flowing water 

(Mark Elvin, botanist, Dudek and 

Associates, pers. comm. to C. 

Lieberman, U.S. Fish and Wildlife 

Service, 2003). 

M. l. ssp. viminea primarily inhabits 

coarse, rocky, sandy alluvium on 

terraces, benches, and stabilized 

sandbars along and within ephemeral 

drainages (Scheid 1985) in coastal sage 

scrub or riparian scrub habitat that is 

frequently associated with Eriogonum 

fasciculatum (California buckwheat), 

Platanus racemosa (sycamore), 

Artemisia californica (California 

sagebrush), and Baccharis sarothroides 

(coyotebush), and Quercus agrifolia 

(coast live oak) (Scheid 1985). These 

semi-open washes and drainage areas 

typically contain little to no canopy 

cover (Reiser 1994; 63 FR 54937) and 

are maintained by large intermittent 

water flows that erode and deposit 

alluvial material, developing benches 

and sandbars. 

Distribution and Status 

The distribution of M. l. ssp. viminea 

is extremely restricted within San Diego 

County, California, and extends south to 

Baja California, Mexico (Scheid 1985). 

This narrow endemic plant persists in 

small isolated occurrences within a 72 

square-mile (186 square-kilometer) area 

between Los Pen ̃ asquitos Canyon and 

Mission Gorge in San Diego County and 

in Otay Mesa and northern Baja 

California. The morphology of M. l. ssp. 

viminea differs between the populations 

bounded by the Los Pen ̃ asquitos Canyon 

and Mission Gorge region to the north 

and Otay Mesa and northern Baja 

California region to the south. These 

differences led Elvin and Sanders (2003) 

to propose the Otay Mesa and northern 

Baja California occurrences as a 

different taxon. The Service evaluated 

this information and concluded that the 

authors did not provide adequate 

evidence to elevate the Otay Mesa and 

northern Baja California occurrences to 

the species rank (Bartel and Wallace, in 

litt. 2004). 

As stated in the 1998 listing rule, 

approximately 6,000 individuals of M. l. 

ssp. viminea from 20 occurrences were 

known to exist in the United States 

within the following canyons or 

geographic areas at the time the species 

was listed as endangered: MCAS 

Miramar, Sycamore Canyon (partially 

on private land, partially on Federal 

land managed by the U.S. Navy, and 

partially on Sycamore Canyon City 

Park), Lopez Canyon (Los Pen ̃ asquitos 

City Regional Park), San Clemente 

Canyon (San Clemente Park), Cedar 

Canyon, and Marron Valley. Since M. l. 

ssp. viminea was listed, a population 

was found on BLM land on Otay 

Mountain. 

We are currently aware of only 15 

occurrences in the United States within 

the following canyons or geographic 

areas: MCAS Miramar (Rose Canyon, 

part of Sycamore Canyon, West 

Sycamore Canyon, part of Spring 

Canyon, San Clemente Canyon, Elanus 

Canyon (MCAS Miramar 2002)), part of 

Sycamore Canyon on private property 

and Sycamore Canyon City Park, Cedar 

Canyon (now referred to as Otay Lakes), 

Lopez Canyon (Los Pen ̃ asquitos City 

Regional Park), Marron Valley, and Otay 

Mountain. 

The remaining six occurrences are 

believed to have been extirpated after 

the species was listed in 1998: 

The Carroll Canyon occurrence 

(California Natural Diversity Data Base 

(CNDDB) occurrence number 25): this 

occurrence is comprised of 122 clumps, 

was collected as mitigation for the 

Carroll Canyon Business Park project in 

2003 to prevent their destruction during 

the project’s construction. Of these 122 

clumps, 30 are being held at the Rancho 

Santa Ana Botanic Garden as live 

material. Others will be reintroduced 

back into suitable sites in Carroll 

Canyon, at a robust historical 

population site at San Clemente 

Canyon, and/or in Lopez Canyon next to 

existing populations. The exact location 

where M. l. ssp. viminea will be 

reintroduced will depend on the results 

of genetic testing to determine the 

genetic similarity of the donor 

population with any population in 

which it may interact. 

The three San Clemente Canyon 

occurrences on City of San Diego Park 

land (CNDDB occurrence numbers 11, 

16, and 17): These three occurrences of 

M. l. ssp. viminea historically occurred 

in the upper portion of the canyon at 

MCAS Miramar, and in the lower 

portion of the canyon west of Interstate 

805 in the City of San Diego’s Marian 

Bear Natural Park. These occurrences 

within this park are believed to have 

been extirpated due to construction of 

Highway 52, development within its 

watershed resulting in conversion of the 

occupied stream from ephemeral to 

perennial (Sherman 2003), and an 

increase in nonnative invasive species. 

The two occurrences within Murphy 

Canyon (CNDDB occurrence numbers 

Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Proposed Rules 67959 

15, and 30) (CNDDB 1997; CNDDB 2001; 

63 FR 54937): These occurrences have 

not had any live standing plants since 

2002, and we do not know if suitable 

habitat remains here but they are 

believed to be extirpated (JoEllan 

Kassebaum, Botanist, MCAS Miramar, 

pers. com. to Bridgette Tuerler, Service 

2005). 

Monardella linoides ssp. viminea was 

also known from Cemetery Canyon, 

Beeler Canyon (near Poway), and 

Switzer Canyons but is believed to have 

been extirpated from these areas prior to 

listing (CNDDB 2001; Elvin and Sanders 

2003). 

Methods to survey Monardella 

linoides ssp. viminea vary because it 

tends to grow in groupings (referred to 

as clumps) rather than as discrete 

plants, making it difficult to compare 

the numbers of individuals counted 

between different surveys. Surveys have 

counted individual plants, clumps of 

individual plants, and/or colonies (see 

Table 1 for details). 

TABLE 1.—SURVEY DATA FOR EXTANT OCCURRENCES OF MONARDELLA LINOIDES SSP. VIMINEA AT VARIOUS LOCATIONS

OVER TIME, FROM PRE-2000 TO 2004 

[Years fro which we have no data are represented as ‘‘ND’’ and years for which we have no specific abundance data, only positive survey data, 

are represented as ‘‘occupied’’] 

Geographic area Ownership 

Date 

Pre-2000 2000 2001 2002 2003 2004 

(1) Sycamore Canyon ............ MCAS Miramar ...................... 383 plants 13 .. ND* ................ ND ................. 446 clumps 8 .. ND ................. ND. 

Private ................................... Occupied **7 .. 262 clumps 2 .. 170 clumps 3 .. 128 plants 4 .... 85 clumps 

(390 

plants) 5.

93 clumps 

(354 

plants). 6

(2) West Sycamore Canyon .. MCAS Miramar ...................... 1376 plants 13; 

650 colonies 

in 1987 10.

907 clumps 9 .. ND ................. 1,737 plants 

(132 

clumps) 8.

ND ................. ND. 

City of San Diego .................. Occupied 7 ..... 12 clumps.12 .. ND ................. ND ................. ND ................. ND. 

Private ................................... ND ................. ND ................. ND ................. ND ................. 0 clumps, previously 23 

clumps.11.

ND. 

(3) Spring Canyon .................. MCAS Miramar ...................... 185 clumps in 

1994 10.

ND ................. ND ................. 549 plants (80 

clumps) 8.

ND ................. ND. 

Private (East Elliot) ............... ND ................. 133 clumps 2 .. ND ................. ND ................. ND ................. ND. 

(4) San Clemente Canyon ..... MCAS Miramar ...................... Occupied 7 ..... 343 clumps 9 .. ND ................. 503 plants (83 

clumps) 8.

ND ................. ND. 

(5) Elanus Canyon ................. MCAS Miramar ...................... 10 clumps or 

individuals 10.

9 clumps 9 ...... ND ................. 13 plants (2 

clumps) 8.

ND ................. ND. 

(6) Lopez Canyon .................. City of San Diego (Los 

Pen ̃aquitos City Regional 

Park).

60 plants in 

1980 1, 12 

clumps in 

1994, 8 

clumps in 

1997 1, 35 

plants in 

1987 1.

8 clumps 2 ...... 8 clumps 3 ...... 44 plants 4 ..... 8 clumps (82 

plants) 5.

8 clumps (82 

plants). 6

(7) Marron Valley ................... City of San Diego & State 

(CDF).

60 plants in 

1992 14.

42 clumps 2 .... 66 clumps 3 .... 98 plants 4 ..... 83 clumps 

(192 

plants) 5.

70 clumps 

(113 

plants). 6

(8) Otay Lakes (also referred 

to as Cedar Canyon).

State (CDFG) ........................ 200 plants in 

1989 10.

Occupied 7 ..... ND ................. 4 clumps 12 .... ND ................. ND. 

City of San Diego .................. ND ................. 2 clumps 2 ...... 2 clumps 3 ...... 2 plants 4 ....... ND ................. 2 plants 6. 

Private ................................... ND ................. ND ................. 25 plants 12 .... ND ................. ND ................. ND. 

(9) Rose Canyon .................... MCAS Miramar ...................... Occupied 7 ..... ND ................. ND ................. 4 plants (2 

clumps) 8.

ND ................. ND. 

(10) Otay Mountain ................ Federal (BLM) ....................... ND ................. 202 clumps 2 .. ND ................. ND ................. ND ................. ND. 

(Marine Corps Air Station (MCAS); California Department of Fish and Game (CDFG); Bureau of Land Management (BLM); California Department of Forestry 

(CDF)). 

*ND = Years for which we have no data. 

**Occupied = Years for which we have no specific abundance data, only positive survey data. 

1Kelly and Burrascano 2001. 

2 City 2000. 

3 City 2001. 

4 City 2002. 

5 City 2003. 

6 City 2004. 

7GIS data layer from MCAS (No Date). 

8 MCAS Miramar 2002. 

9Service 2000. 

10 CNDDB 2001. 11 Helix Environmental Planning, Inc. 2004. 12Sherman 2003. 13GIS data layer from MCAS (unknown, but before 1998). 14 MSCP GIS layer from San Diego Association of Governments. 

As stated in the final listing rule, 

threats to Monardella linoides ssp. 

viminea include habitat alteration 

resulting from urban development, sand 

and gravel mining, off-road vehicle 

(ORV) activities, trampling, trash 

dumping, erosion, and invasion of 

nonnative species (October 13, 1998; 63 

FR 54938). 

Due to its small population sizes and 

numbers, M. l. ssp. viminea is 

potentially threatened with stochastic 

(random) extinction (Service 1995). 

Chance events (e.g., floods, fires, or 

drought) can substantially reduce or 

eliminate local populations and increase 

the likelihood of the plant’s extinction. 

Major flood events can physically wash 

away individual plants and existing 

habitat (Kelly and Burrascano 2001). M. 

l. ssp. viminea had likely adapted to a 

67960 Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Proposed Rules 

natural fire regime since fires maintain 

open and available habitat necessary for 

M. l. ssp. viminea. Alternatively, 

disruptions to natural fire cycles may be 

detrimental to M. l. ssp. viminea 

because excessive fuel build up may 

cause hotter fires than those to which M. 

l. ssp. viminea has become adapted. Fire 

has resulted in loss of M. l. ssp. viminea 

individuals on Otay Lakes lands, 

although it was recently verified that 

surviving individuals still occur in this 

area (Sherman 2003) and on MCAS 

Miramar. Drought has reduced 

population size within Sycamore 

Canyon (City 2002). Herbivory by 

unchecked populations of native rabbits 

and deer also has been identified as a 

threat to populations of M. l. ssp. 

viminea (Kelly and Burrascano 2001). 

Previous Federal Actions 

Please see the final rule listing 

Monardella linoides ssp. viminea as 

endangered for a description of previous 

Federal actions up to the time of listing 

on October 13, 1998 (63 FR 54938). In 

the final listing rule, the Service 

determined designation of critical 

habitat was not prudent because such 

designation would not benefit the 

species and could increase the threat of 

illegal collection. 

On September 26, 2001, a lawsuit was 

filed against the Department of the 

Interior (DOI) and the Service by the 

California Native Plant Society (CNPS) 

alleging, in part, that the Service 

improperly determined that designation 

of critical habitat for Monardella 

linoides ssp. viminea was not prudent 

(CNPS v. Norton, No. 01–CV–1742IEG 

(JAH). The Service entered into a 

settlement agreement with the plaintiffs, 

under which we agreed to reconsider 

our ‘‘not prudent’’ finding, publish a 

proposed critical habitat rule for M. l. 

ssp. viminea in the Federal Register, if 

prudent, on or before October 30, 2005, 

and publish a final critical habitat rule, 

if prudent, on or before October 30, 

2006. This proposed rule complies with 

the June 2, 2003 settlement agreement. 

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

implementing regulations (50 CFR 

424.12) require that, to the maximum 

extent prudent and determinable, we 

designate critical habitat at the time a 

species is listed as endangered or 

threatened. Our regulations at 50 CFR 

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

critical habitat is not prudent when one 

or both of the following situations exist: 

(1) The species is threatened by taking 

or other activity and the identification 

of critical habitat can be expected to 

increase the degree of threat to the 

species or (2) such designation of 

critical habitat would not be beneficial 

to the species. In our October 13, 1998, 

final rule (63 FR 54938), we determined 

that designation of critical habitat 

would provide little conservation 

benefit over that provided by listing. We 

determined that designation of critical 

habitat was not prudent based on the 

increased threat of collection and 

vandalism and stated that designation of 

critical habitat could lead to increased 

publicity, illegal collection, and 

trampling of plants by individuals 

interested in seeing rare plants. 

However, in the past few years, 

several of our determinations that the 

designation of critical habitat would not 

be prudent have been overturned by 

court decisions. For example, in 

Conservation Council for Hawaii v. 

Babbitt, the United States District Court 

for the District of Hawaii ruled that the 

Service could not rely on the ‘‘increased 

threat’’ rationale for a ‘‘not prudent’’

determination without specific evidence 

of the threat to the species at issue (2 F. 

Supp. 2d 1280 [D. Hawaii 1998]). 

Additionally, in Natural Resources 

Defense Council v. U.S. Department of 

the Interior, the United States Court of 

Appeals for the Ninth Circuit ruled that 

the Service must balance, in order to 

invoke the ‘‘increased threat rationale,’’

the threat against the benefit to the 

species of designating critical habitat 

(113 F. 3d 1121, 1125 [9th Cir. 1997]). 

At this time, we do not have specific 

evidence for overcollection or 

vandalism specific to this plant and its 

habitat. The courts also have ruled that, 

in the absence of a finding that the 

designation of critical habitat would 

increase threats to a species, the 

existence of another type of protection, 

even if it offers potentially greater 

protection to the species, does not 

justify a ‘‘not prudent’’ finding 

(Conservation Council for Hawaii v. 

Babbitt 2 F. Supp. 2d 1280). We are 

already working with Federal, State of 

California, County of San Diego, and 

City of San Diego agencies and 

organizations in carrying out 

conservation activities for this plant and 

conducting surveys for additional 

occurrences of the species and to assess 

habitat conditions. These entities are 

fully aware of the distribution, status, 

and habitat requirements for this plant. 

We have reconsidered our evaluation of 

the threats posed by collection and 

vandalism in the prudency 

determination. We have determined that 

the threats to Monardella linoides ssp. 

viminea from specific instances of 

collection vandalism are speculative. 

Accordingly, we withdraw our previous 

determination that the designation of 

critical habitat is not prudent for M. l. 

ssp. viminea. Therefore, we determine 

that the designation of critical habitat is 

prudent for M. l. ssp. viminea. At this 

time, we have sufficient information 

necessary to identify specific features as 

essential to the conservation of M. l. ssp. 

viminea and are therefore, proposing 

critical habitat (see ‘‘Methods’’ section 

below for a discussion of information 

used in our reevaluation). In total, we 

have determined that approximately 

2,539 acres (ac) (1,028 hectares (ha)) of 

land within San Diego County, 

California, contain the primary 

constituent elements essential to the 

conservation of M. l. ssp. viminea. 

Critical Habitat 

Critical habitat is defined in section 3 

of the Act as—(i) the specific areas 

within the geographical area occupied 

by a species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features (I) essential to the conservation 

of the species and (II) that may require 

special management considerations or 

protection; and (ii) specific areas 

outside the geographical area occupied 

by a species at the time it is listed, upon 

a determination that such areas are 

essential for the conservation of the 

species. ‘‘Conservation’’ means the use 

of all methods and procedures that are 

necessary to bring an endangered or a 

threatened species to the point at which 

listing under the Act is no longer 

necessary. 

Critical habitat receives protection 

under section 7 of the Act through the 

prohibition against destruction or 

adverse modification of critical habitat 

with regard to actions carried out, 

funded, or authorized by a Federal 

agency. Section 7 requires consultation 

on Federal actions that are likely to 

result in the destruction or adverse 

modification of critical habitat. The 

designation of critical habitat does not 

affect land ownership or establish a 

refuge, wilderness, reserve, preserve, or 

other conservation area. Such 

designation does not allow government 

or public access to private lands. 

To be included in a critical habitat 

designation, the habitat within the area 

occupied by the species at the time of 

listing must first have features that are 

essential to the conservation of the 

species. Critical habitat designations 

identify, to the extent known using the 

best scientific data available, habitat 

areas that provide essential life cycle 

needs of the species (i.e., areas on which 

are found the primary constituent 

elements (PCEs), as defined at 50 CFR 

424.12(b)). 

Habitat occupied at the time of listing 

may be included in critical habitat only 

if the essential features thereon may 

Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Proposed Rules 67961 

require special management or 

protection. Thus, we do not include 

areas where existing management is 

sufficient to conserve the species. (As 

discussed below, such areas may also be 

excluded from critical habitat pursuant 

to section 4(b)(2)). With regard to areas 

not known to be occupied by the species 

at the time of listing, we will designate 

such areas when the best available 

scientific data indicates that the 

conservation needs of the species so 

require. 

The Service’s Policy on Information 

Standards Under the Endangered 

Species Act, published in the Federal 

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

and Section 515 of the Treasury and 

General Government Appropriations 

Act for Fiscal Year 2001 (P.L. 106–554; 

H.R. 5658) and the associated 

Information Quality Guidelines issued 

by the Service, provide criteria, 

establish procedures, and provide 

guidance to ensure that decisions made 

by the Service represent the best 

scientific data available. They require 

Service biologists, to the extent 

consistent with the Act and with the use 

of the best scientific data available, to 

use primary and original sources of 

information as the basis for 

recommendations to designate critical 

habitat. When determining which areas 

are critical habitat, a primary source of 

information is generally the listing 

package for the species. Additional 

information sources include the 

recovery plan for the species, articles in 

peer-reviewed journals, conservation 

plans developed by States and counties, 

scientific status surveys and studies, 

biological assessments, or other 

unpublished materials and expert 

opinion or personal knowledge. All 

information is used in accordance with 

the provisions of Section 515 of the 

Treasury and General Government 

Appropriations Act for Fiscal Year 2001 

(P.L. 106–554; H.R. 5658) and the 

associated Information Quality 

Guidelines issued by the Service. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific data available. Habitat 

is often dynamic, and species may move 

from one area to another over time. 

Furthermore, we recognize that 

designation of critical habitat may not 

include all of the habitat areas that may 

eventually be determined to be 

necessary for the recovery of the 

species. For these reasons, critical 

habitat designations do not signal that 

habitat outside the designation is 

unimportant or may not be required for 

recovery. 

Areas that support populations, but 

are outside the critical habitat 

designation, will continue to be subject 

to conservation actions implemented 

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

the regulatory protections afforded by 

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

determined on the basis of the best 

available information at the time of the 

action. Federally funded or permitted 

projects affecting listed species outside 

their designated critical habitat areas 

may still result in jeopardy findings in 

some cases. Similarly, critical habitat 

designations made on the basis of the 

best available information at the time of 

designation will not control the 

direction and substance of future 

recovery plans, habitat conservation 

plans, or other species conservation 

planning efforts if new information 

available to these planning efforts calls 

for a different outcome. 

Methods 

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

the Act, we use the best scientific data 

available in determining areas that 

contain the features that are essential to 

the conservation of Monardella linoides 

ssp. viminea. Information sources 

included data from research and survey 

observations published in peerreviewed articles; survey reports 

submitted as requirement of obtaining a 

section 10(a)(1)(A) permit; regional 

Geographic Information System (GIS) 

data from the San Diego Multiple 

Species Conservation Program (MSCP), 

soil, and species coverages (including 

layers for the City of San Diego and 

MCAS Miramar); and data compiled in 

the California Natural Diversity Data 

Base (CNDDB). We have also reviewed 

available information that pertains to 

the habitat requirements of this species. 

The material included data in reports 

submitted during section 7 

consultations; research published in 

peer-reviewed articles and agency 

reports; and, regional GIS coverages. We 

are not proposing critical habitat in 

areas outside the geographical area 

occupied at the time of listing. The Otay 

Mountain population, discovered after 

the publication of the final listing rule, 

is approximately 4.75 miles (7.6 

kilometers) west of the known 

population at Marron Valley. We 

consider the Otay Mountain occurrence 

to be a confirmation of the distribution 

of M. l. ssp. viminea within southern 

San Diego County. We are considering 

whether to exclude the Otay Mountain 

population from critical habitat in the 

final rule, as discussed below in the 

Exclusions section of this proposed rule. 

We have reviewed and used the best 

available information about known 

occurrences and habitat requirements of 

Monardella linoides ssp. viminea. We 

delineated the boundaries of habitat 

containing features essential to the 

conservation of species by outlining the 

local drainage area from the upper-to 

the lower-most occurrence point within 

each occupied drainage area following 

topographic lines on USGS 

topographical maps. The majority of the 

occurrence points are based on data 

collected in 1998 and 2002 and were 

used to delineate the up- and downstream boundaries of habitat containing 

features essential to the conservation of 

species within each drainage. 

These areas were further refined by 

gathering information about these areas 

with Service biologists and other 

knowledgeable individuals familiar 

with Monardella linoides ssp. viminea 

and their habitat. After creating GIS 

coverage of the areas containing features 

essential to the conservation of species, 

we created legal descriptions using a 

100-meter grid to establish Universal 

Transverse Mercator (UTM) North 

American Datum 27 (NAD 27) 

coordinates which, when connected, 

provided the boundaries of the area 

proposed as critical habitat. 

Primary Constituent Elements 

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

of the Act and regulations at 50 CFR 

424.12, in determining which areas to 

propose as critical habitat, we are 

required to base critical habitat 

determinations on the best scientific 

data available and to consider those 

physical and biological features 

(primary constituent elements (PCEs)) 

that are essential to the conservation of 

the species, and that may require special 

management considerations and 

protection. These include, but are not 

limited to: Space for individual and 

population growth and for normal 

behavior; food, water, air, light, 

minerals, or other nutritional or 

physiological requirements; cover or 

shelter; sites for breeding, reproduction, 

and rearing (or development) of 

offspring; and habitats that are protected 

from disturbance or are representative of 

the historic geographical and ecological 

distributions of a species. The specific 

PCEs required for Monardella linoides 

ssp. viminea are derived from the 

biological needs of the species as 

described below and in the final listing 

rule for M. l. ssp. viminea (October 13, 

1998; 63 FR 54937). 

Space for Individual and Population 

Growth and Normal Behavior 

Open or semi-open rocky, sandy 

alluvium on terraced floodplains, 

benches, stabilized sandbars, channel 

banks, and sandy washes along 

ephemeral streams, washes, and 

67962 Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Proposed Rules 

floodplains are needed for individual 

and population growth of Monardella 

linoides ssp. viminea (October 13, 1998; 

63 FR 54938) (PCE 1). M. l. ssp. viminea 

in the Otay Lakes/Marron Valley area 

also occur in cracks of bedrock of 

ephemeral drainages. While little is 

known about the space needed for 

reproduction, flowing water appears to 

be important for transporting seeds and 

vegetative shoots (Mark Elvin, botanist, 

Dudek and Associates, pers. comm. to C. 

Lieberman, U.S. Fish and Wildlife 

Service, 2003). Animals may also be 

important for seed dispersal. We are 

unaware of any studies documenting 

specific pollinators of M. l. ssp. viminea; 

however, the floral structure suggests 

insect pollination. Intermittently 

flooded areas are dynamic such that the 

stream path and the location of benches 

and sandbars along the shoreline may 

change depending on seasonal water 

flows. Therefore, the riparian corridor 

where M. l. ssp. viminea is found is an 

integral part of and important for 

providing space for growth and 

reproduction within this dynamic 

ecosystem. 

Water and Physiological Requirements 

A natural hydrologic regime that 

includes intermittent flooding during 

the rainy season is needed to maintain 

washes and sandbars where Monardella 

linoides ssp. viminea grows (PCE 2) 

(October 13, 1998; 63 FR 54938). Large 

intermittent water flows resulting from 

seasonal rains and major flooding events 

erode and deposit alluvial material, 

developing benches and sandbars used 

by M. l. ssp. viminea. These seasonal 

rains and intermittent flooding events 

may also be important for transporting 

seeds and vegetative shoots as stated 

above and are needed to maintain the 

open or semi-open riparian areas with 

little or no canopy cover needed to 

ensure that the species receives 

adequate sunlight for nutrient uptake 

(photosynthesis) (PCE 3). 

Primary Constituent Elements for 

Monardella linoides ssp. viminea 

Based on our current knowledge of 

the life history, biology, and ecology of 

the species and the habitat requirements 

to sustain the essential life history 

functions of the species, we have 

determined that the PCEs essential for 

the conservation of Monardella linoides 

ssp. viminea are: 

(1) Coarse, rocky, sandy alluvium on 

terraced floodplains, benches, stabilized 

sandbars, channel banks, and sandy 

washes along and within the ephemeral 

drainages that provide space for growth, 

reproduction, and dispersal; 

(2) Ephemeral drainages where water 

flows only after peak seasonal rains and 

major flooding events and periodically 

scours riparian vegetation and 

redistributes alluvial material by 

eroding and developing stream 

channels, benches, and sandbar and 

thus maintains necessary dynamic 

habitat processes for the species; and 

(3) Coastal sage and riparian scrub 

with an open and semi-open canopy 

and little or no herbaceous understory 

situated along ephemeral drainages and 

adjacent floodplains to ensure that the 

subspecies receives adequate sunlight 

for nutrient uptake for photosynthesis. 

Criteria Used to Identify Critical 

Habitat 

We are proposing to designate critical 

habitat on lands that were known to be 

occupied at the time of listing and 

contain the PCEs for Monardella 

linoides ssp. viminea. We used the 

following criteria to identify these areas: 

(1) Areas known to be occupied at the 

time of listing and/or known to be 

currently occupied; and (2) ephemeral 

washes and drainage areas associated 

with documented occurrences. 

These areas were then analyzed with 

respect to special management 

considerations or protections. 

Subsequently, we identified areas we 

are exempting from critical habitat 

designation based on provisions of 

section 4(a)(3) of the Act and other areas 

we are considering excluding from 

critical habitat based on the provisions 

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

Using the above criteria, we identified 

10 areas that contain features essential 

to the conservation of M. l. ssp. viminea, 

one in each of the following canyons/ 

geographic areas: (1) Sycamore Canyon, 

(2) West Sycamore Canyon, (3) Spring 

Canyon, (4) San Clemente Canyon, (5) 

Elanus Canyon, (6) Lopez Canyon, (7) 

Marron Valley, (8) Otay Lakes (also 

known as Cedar Canyon), (9) Otay 

Mountain, and (10) Rose Canyon (MCAS 

Miramar). All 10 areas, except Otay 

Mountain, were known to be occupied 

at the time of listing, and all 10 areas, 

including Otay Mountain, are currently 

known to be occupied. 

When mapping proposed critical 

habitat boundaries, we made every 

effort to remove all lands containing 

developed areas such as buildings, 

paved areas, boat ramps and other 

structures that lack PCEs for Monardella 

linoides ssp. viminea. Any lands 

containing such structures that could 

not be removed from the maps, due to 

the mapping scale used, are excluded by 

this text from critical habitat. Therefore, 

Federal actions limited to these lands 

would not trigger section 7 

consultations, unless they affect the 

species and/or PCEs in adjacent critical 

habitat. 

Special Management Considerations or 

Protections 

When designating critical habitat, we 

assess whether the areas determined to 

be occupied at the time of listing that 

contain one or more PCEs may require 

special management considerations or 

protections. 

As stated in the final listing rule, 

threats to Monardella linoides ssp. 

viminea include habitat alteration 

resulting from urban development, sand 

and gravel mining, off-road vehicle 

(ORV) activities, trampling, trash 

dumping, erosion, and invasion of 

nonnative species (October 13, 1998; 63 

FR 54938). These activities could 

impact the PCEs determined to be 

essential for conservation of M. l. ssp. 

viminea. 

Urban development and sand and 

gravel mining upstream of Monardella 

linoides ssp. viminea occurrences may 

alter the hydrologic regime needed to 

maintain the habitat characteristics 

required by M. l. ssp. viminea. 

Conversion of intermittent water flows 

to persistent water flows may increase 

scour and erode terraces and benches, 

washing away rooted plants and 

reducing available habitat (PCEs 1 and 

2). Kelly and Burrascano (2001) attribute 

disappearance of terraces in Lopez 

Canyon to increased erosion associated 

with urban runoff from upstream 

development. Water diversion, such as 

water removal from the drainage system 

occupied by the subspecies could 

reduce the amount of water flowing 

downstream following seasonal flooding 

events resulting in decreased deposition 

of alluvial material and a subsequent 

reduction in the amount of available 

habitat (PCEs 1 and 2). Disruption of the 

hydrologic cycle could also result in a 

decrease in the number of seeds that 

could have been transported 

downstream during seasonal flooding 

events, thereby, fragmenting 

populations (PCE 2). The use of 

pesticides or herbicides in residential 

and commercially landscaped areas 

within the watershed may impact water 

quality if used upslope or above a 

stream (PCE 2). Special management 

such as bank replacement or 

stabilization to maintain the substrate, 

restoration of intermittent water flows, 

erosion and runoff control measures, 

and prohibitions against grading during 

the rainy season may be required to 

reduce impacts to M. l. ssp. viminea 

habitat resulting from alteration of the 

hydrologic regime due to development 

within the local watershed. 

Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Proposed Rules 67963 

Alteration of the hydrologic regime 

also can result in an increase in native 

and nonnative plant species invading 

the riparian areas where M. l. ssp. 

viminea occurs. Increased water flow 

associated with urban runoff has led to 

dense stands of riparian vegetation in 

the upper reaches of Lopez Canyon 

where M. l. ssp. viminea once occurred 

(Kelly and Burrascano 2001). Increases 

in riparian vegetation within ephemeral 

drainages may also be responsible for 

losses of M. l. ssp. viminea in lower San 

Clemente Canyon. Conversely, 

decreased water availability may result 

in conversion of habitat from mesic to 

xeric, adversely impacting M. l. ssp. 

viminea. More drought tolerant plants 

could expand into M. l. ssp. viminea 

habitat and create unnaturally high 

canopy cover or dense riparian 

vegetation that could crowd M. l. ssp. 

viminea out or render the habitat 

unsuitable by creating excessive shading 

(PCE 3). Special management may be 

required to remove invasive species to 

maintain an open or semi-open canopy 

of coastal sage and riparian scrub with 

minimal herbaceous understory 

required by M. l. ssp. viminea for 

persistence (PCE 3). 

Human use (e.g., ORV activities and 

trampling) along streams can change the 

character of the riparian area and 

associated vegetation in ways that make 

portions of the riparian corridor less 

suitable as habitat for M. l. ssp. viminea. 

For example, heavy trampling may 

erode or denude stream banks and 

washes, thereby, reducing or 

eliminating available habitat (PCE 1). 

Special management such as bank 

replacement or stabilization to maintain 

the substrate and prohibitions against 

ORV use during the rainy season may be 

required to reduce impacts to M. l. ssp. 

viminea habitat resulting from human 

use within the local watershed. 

Proposed Critical Habitat Designation 

As stated above, we identified 10 

canyons/geographic areas containing 

habitat with features essential to the 

conservation of this species. We are 

proposing critical habitat within a 

portion of Sycamore Canyon (Unit 1) 

within the City of Santee. We are 

exempting under section 4(a)(3) of the 

Act, all lands within MCAS Miramar 

(Rose Canyon and portions of San 

Clemente Canyon, Elanus Canyon, 

Spring Canyon, West Sycamore Canyon, 

and Sycamore Canyon) from this critical 

habitat designation. We are also 

considering excluding from this critical 

habitat designation a portion of 

Sycamore Canyon and all of West 

Sycamore Canyon, Spring Canyon, San 

Clemente Canyon, Elanus Canyon, 

Lopez Canyon, Marron Valley, Otay 

Lakes, and Otay Mountain under section 

4(b)(2) of the Act. Table 2 below 

provides approximate area (ac/ha) of 

lands being proposed as critical habitat 

for M. l. ssp. viminea and information 

about landownership within this unit. 

The proposed critical habitat unit 

described below constitutes our best 

assessment at this time of those areas 

determined to be occupied at the time 

of listing that contain one or more PCEs 

essential to the conservation of the 

Monardella linoides ssp. viminea that 

may require special management. A 

brief description of the proposed critical 

habitat unit and reasons why this unit 

is essential for the conservation of M. l. 

ssp. viminea is presented below. 

TABLE 2.—OWNERSHIP AND APPROXIMATE AREAS (AC/HA) PROPOSED AS CRITICAL HABITAT FOR MONARDELLA LINOIDES

SSP. VIMINEA

Unit Ownership 

Proposed critical 

habitat acres (ac) 

(hectares (ha)) 

Unit 1: Sycamore Canyon ....................................................................................... Private .................................................... 114 ac (46 ha). 

Water District ......................................... 1 ac (1 ha). 

Total ....................................................... 115 ac (47 ha) 

Unit Description 

Unit 1: Sycamore Canyon: (115 ac (47 

ha)) 

Sycamore Canyon area supports one 

of the largest occurrences of Monardella 

linoides ssp. viminea (CNDDB 2001) 

and was known to be occupied at the 

time of listing and is currently known 

to be occupied (Table 1). Lands in Unit 

1 contain one or more of the PCEs 

identified for M. l. ssp. viminea. This 

unit is important for the conservation of 

M. l. ssp. viminea because it represents 

one of the ten canyons/geographic areas 

in San Diego County that support this 

species and one of only 14 occurrences 

of this M. l. ssp. viminea. Given the 

restricted range and low numbers of 

occurrences, this unit is essential to 

minimize the risk of extinction from 

random events and urban development. 

Approximately 114 ac (46 ha) in Unit 

1 are private lands and located within 

the City of Santee on lands being 

proposed for the Fanita Ranch 

development project. Fanita Ranch is 

currently developing a habitat 

conservation plan that will serve as the 

foundation for the City of Santee’s 

subarea plan under the MSCP. In the 

future, we may consider excluding 

Fanita Ranch from critical habitat 

designation based on a pending or 

approved HCP that provide benefits for 

M. l. ssp. viminea or an approved 

conservation agreement between the 

Service and Fanita Ranch that provides 

assurances of the conservation measures 

that Fanita Ranch will undertake to 

protect and manage for M. l. ssp. 

viminea on their lands. Fanita Ranch 

has provided the Service with a letter 

that expressed their interest in working 

together to prepare a conservation 

agreement for M. l. ssp. viminea that 

would provide the basis for excluding 

their lands from designation under 

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

Likewise, approximately 1 ac (1 ha) in 

Unit 1 is on lands owned by the Padre 

Dam Municipal Water District. This 

water district, along with Helix Water 

District, Santa Fe Irrigation District, and 

Sweetwater Authority, is developing a 

multiple species habitat conservation 

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

Act. We published a notice of intent to 

prepare an environmental impact 

statement/environmental impact report 

for a Natural Communities Conservation 

Plan and HCP on February 4, 2005 

(February 4, 2005; 70 FR 6033). In the 

future, we may consider excluding 

Padre Dam Municipal Water District 

from critical habitat designation based 

on a pending or approved HCP that 

provide benefits for M. l. ssp. viminea or 

an approved conservation agreement 

between the Service and Padre Dam 

Municipal Water District that provides 

assurances of the conservation measures 

that Padre Dam Municipal Water 

District will undertake to protect and 

manage for M. l. ssp. viminea on their 

lands. 

Habitat with features essential to the 

conservation of M. l. ssp. viminea on 

67964 Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Proposed Rules 

private and Padre Dam Municipal Water 

District lands in Unit 1 may require 

special management to minimize 

impacts by nonnative invasive weeds, 

fire, indirect and direct effects of 

development, including altered 

hydrology, and recreational activities. 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7 of the Act requires Federal 

agencies, including the Service, to 

ensure that actions they fund, authorize, 

or carry out are not likely to destroy or 

adversely modify critical habitat. 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.’’ We are currently 

reviewing the regulatory definition of 

adverse modification in relation to the 

conservation of the species. 

Section 7(a) of the Act requires 

Federal agencies, including the Service, 

to evaluate their actions with respect to 

any species that is proposed or listed as 

endangered or threatened and with 

respect to its critical habitat, if any is 

proposed or designated. Regulations 

implementing this interagency 

cooperation provision of the Act are 

codified at 50 CFR Part 402. 

Section 7(a)(4) of the Act requires 

Federal agencies to confer with us on 

any action that is likely to jeopardize 

the continued existence of a proposed 

species or result in destruction or 

adverse modification of proposed 

critical habitat. Conference reports 

provide conservation recommendations 

to assist the agency in eliminating 

conflicts that may be caused by the 

proposed action. We may issue a formal 

conference report if requested by a 

Federal agency. Formal conference 

reports on proposed critical habitat 

contain an opinion that is prepared 

according to 50 CFR 402.14, as if critical 

habitat were designated. We may adopt 

the formal conference report as the 

biological opinion when the critical 

habitat is designated, if no substantial 

new information or changes in the 

action alter the content of the opinion 

(see 50 CFR 402.10(d)). Until such a 

time as a proposed designation is 

finalized, any reasonable and prudent 

alternatives or reasonable and prudent 

measures included in a conference 

report are advisory. 

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, the 

action agency ensures that their actions 

do not destroy or adversely modify 

critical habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

result in the destruction or adverse 

modification of critical habitat, we also 

provide reasonable and prudent 

alternatives to the project, if any are 

identifiable. ‘‘Reasonable and prudent 

alternatives’’ are defined at 50 CFR 

402.02 as alternative actions identified 

during consultation that can be 

implemented in a manner consistent 

with the intended purpose of the action, 

that are consistent with the scope of the 

Federal agency’s legal authority and 

jurisdiction, that are economically and 

technologically feasible, and that the 

Director believes would avoid 

destruction or adverse modification of 

critical habitat. Reasonable and prudent 

alternatives can vary from slight project 

modifications to extensive redesign or 

relocation of the project. Costs 

associated with implementing a 

reasonable and prudent alternative are 

similarly variable. 

Regulations at 50 CFR 402.16 require 

Federal agencies to reinitiate 

consultation on previously reviewed 

actions in instances where critical 

habitat is subsequently designated and 

the Federal agency has retained 

discretionary involvement or control 

over the action or such discretionary 

involvement or control is authorized by 

law. Consequently, some Federal 

agencies may request reinitiation of 

consultation or 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. 

Federal activities that may affect the 

Monardella linoides ssp. viminea 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 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., Federal 

Highway Administration or Federal 

Emergency Management Agency 

funding), will also continue to be 

subject to the section 7 consultation 

process. Federal actions not affecting 

listed species or critical habitat and 

actions on non-Federal and private 

lands that are not federally funded, 

authorized, or permitted do not require 

section 7 consultation. 

Each of the areas designated in this 

rule have been determined to contain 

sufficient PCEs to provide for one or 

more of the life history functions of M. 

l. ssp. viminea. In some cases, the PCEs 

exist as a result of ongoing federal 

actions. As a result, ongoing federal 

actions at the time of designation will be 

included in the baseline in any 

consultation conducted subsequent to 

this designation. 

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

to briefly evaluate and describe in any 

proposed or final regulation that 

designates critical habitat those 

activities involving a Federal action that 

may destroy or adversely modify such 

habitat, or that may be affected by such 

designation. Activities that may destroy 

or adversely modify critical habitat may 

also jeopardize the continued existence 

of the M. l. ssp. viminea. Federal 

activities that, when carried out, may 

adversely affect critical habitat for the 

M. l. ssp. viminea include, but are not 

limited to: 

(1) Actions that would significantly 

alter the natural hydrologic pattern of 

intermittent flows and peak seasonal 

flooding necessary to support 

Monardella linoides ssp. viminea. These 

activities could include Federal 

authorization for urban and agricultural 

development in the watershed that 

changes the amount, timing, frequency, 

and magnitude of stream flows. 

Increased and/or more frequent water 

flows associated with urban runoff 

could lead to dense stands of riparian 

vegetation that may out-compete M. l. 

ssp. viminea. Changes in the magnitude 

of seasonal flooding may increase 

scouring and erosion of terraces, banks, 

and benches and thereby reduce the 

quality and availability of suitable soils 

and habitat. Conversely, reduced water 

flow could result in more xeric 

conditions that would limit plant 

growth and reproduction and thereby 

allowing more drought tolerant plants to 

compete with M. l. ssp. viminea. 

(2) Actions that would remove 

alluvium from stream channels or 

change the physical structure of the 

stream channel by altering floodplains, 

benches, sand bars, and stream channels 

from sand and gravel mining, stream 

channelization, flood channel 

management, highway construction, and 

dredging. Federal authorization for 

projects that physically alter the stream 

channel may remove suitable alluvium 

from stream channels and result in the 

loss and degradation of habitat for M. l. 

ssp. viminea. 

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Application of Section 4(a)(3) and 

Possible Exclusions Under Section 

4(b)(2) of the Act 

Section 3(5)(A) of the Act defines 

critical habitat as the specific areas 

within the geographical area occupied 

by the species at the time of listing on 

which are found those physical and 

biological features (i) essential to the 

conservation of the species and (ii) 

which may require special management 

considerations or protection. Therefore, 

areas within the geographical area 

occupied by the species at the time of 

listing that do not contain the features 

essential for the conservation of the 

species are not, by definition, critical 

habitat. Similarly, areas within the 

geographical area occupied by the 

species at the time of listing that do not 

require special management or 

protection also are not, by definition, 

critical habitat. To determine whether 

an area requires special management, 

we first determine if the essential 

features located there generally require 

special management to address 

applicable threats. If those features do 

not require special management, or if 

they do in general but not for the 

particular area in question because of 

the existence of an adequate 

management plan or for some other 

reason, then the area does not require 

special management. 

We consider a current plan to provide 

adequate management or protection if it 

meets two criteria: (1) The plan provides 

management, protection or 

enhancement to the PCEs at least 

equivalent to that provided by a critical 

habitat designation; and (2) the Service 

has reasonable expectation the 

management, protection or 

enhancement actions will continue for 

the foreseeable future. 

Section 318 of fiscal year 2004 the 

National Defense Authorization Act 

(Pub. L. 108–136) amended the 

Endangered Species Act to address the 

relationship of Integrated Natural 

Resources Management Plans (INRMPs) 

to critical habitat by adding a new 

section 4(a)(3)(B). This provision 

prohibits the Service from designating 

as critical habitat any lands or other 

geographical areas owned or controlled 

by the Department of Defense, or 

designated for its use, that are subject to 

an INRMP prepared under section 101 

of the Sikes Act (16 U.S.C. 670a), if the 

Secretary of the Interior determines in 

writing that such plan provides a benefit 

to the species for which critical habitat 

is proposed for designation. 

Further, section 4(b)(2) of the Act 

states that critical habitat shall be 

designated, and revised, on the basis of 

the best available scientific data after 

taking into consideration the economic 

impact, national security impact, and 

any other relevant impact of specifying 

any particular area as critical habitat. 

An area may be excluded from critical 

habitat if it is determined that the 

benefits of exclusion outweigh the 

benefits of specifying a particular area 

as critical habitat, unless the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. 

For our critical habitat designations, 

we use the provisions outlined in 

sections 3(5)(A), 4(a)(3) and 4(b)(2) of 

the Act to evaluate those specific areas 

that we consider proposing as critical 

habitat. Lands we have found that do 

not meet the definition of critical habitat 

under section 3(5)(A) or that we are 

considering excluding pursuant to 

section 4(b)(2) include those covered by 

legally operative HCPs that cover the 

species. 

The following index figure provides 

an overview of the areas we are 

exempting under section 4(a)(3) of the 

Act and considering excluding under 

section 4(b)(2) of the Act from critical 

habitat. 

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Relationship of Critical Habitat to 

Military Lands—Application of Section 

4(a)(3) 

As discussed above, under section 

4(a)(3) of the Act, the Secretary is 

prohibited from designating as critical 

habitat any Department of Defense lands 

or other geographical areas that are 

subject to an INRMP if the Secretary has 

determined in writing that such plan 

provides a benefit to the species for 

which critical habitat is proposed for 

designation. In order to qualify for this 

exemption, an INRMP must be found to 

provide a benefit to the species in 

question. An INRMP integrates 

implementation of the military mission 

of the installation with stewardship of 

the natural resources found there. Each 

INRMP includes an assessment of the 

ecological needs on the military 

installation, including conservation 

provisions for listed species; a statement 

of goals and priorities; a detailed 

description of management actions to be 

implemented to provide for these 

ecological needs; and a monitoring and 

adaptive management plan. We consult 

with the military on the development 

and implementation of INRMPs for 

installations with listed species. Habitat 

on military installations with completed 

and approved INRMPs that provide a 

benefit to the species are exempt from 

designation as critical habitat pursuant 

to section 4(a)(3)(B). 

We believe that the INRMP for MCAS 

Miramar provides a benefit for 

Monardella linoides ssp. viminea. 

Therefore, we are exempting MCAS 

Miramar from critical habitat 

designation under section 4(a)(3) of the 

Act based on the legally operative 

INRMP for this station (Unit 2). Through 

our process of identifying areas that 

contain features essential to the 

conservation of M. l. ssp. viminea, we 

found that 1,863 ac (754 ha) on MCAS 

Miramar contain the features that are 

essential to the conservation of M. l. ssp. 

viminea. MCAS Miramar, which 

contains a large majority of the mapped 

M. l. ssp. viminea occurrences in the 

United States, has developed and is 

currently implementing their INRMP for 

the Station. The INRMP identifies 

management areas for specific 

endangered species, including M. l. ssp. 

viminea. The INRMP integrates current 

and future land use activities at MCAS 

Miramar with natural resources 

management and conservation. Chapter 

7 of the INRMP outlines objectives and 

planned activities for the Station. High 

priority planned activities include 

management of wetlands and their 

associated watersheds to maintain nonet-loss of wetland values as well as 

management of special status species, 

including M. l. ssp. viminea. Over 99 

percent of M. l. ssp. viminea 

populations within MCAS Miramar are 

protected within specific management 

areas (Dames and Moore 2000). Specific 

measures, such as management and 

monitoring of sensitive biological 

resources, apply to these management 

areas. Future development projects 

within MCAS Miramar should avoid 

these management areas. The U.S. 

Marines have initiated long-term 

monitoring and management of M. l. 

ssp. viminea on MCAS Miramar (San 

Diego Natural History Museum 2002). 

The U.S. Marines conducted baseline 

surveys for M. l. ssp. viminea during the 

spring of 2002. Any future projects on 

the station that may affect M. l. ssp. 

viminea will be subject to consultation 

between MCAS Miramar and the 

Service under section 7 of the Act. We 

therefore believe that the ongoing 

protection, management and monitoring 

of M. l. ssp. viminea provided under the 

MCAS Miramar INRMP provides a 

benefit to the species. Therefore, we are 

exempting MCAS Miramar lands from 

critical habitat designation under 

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

The U.S. Marine Corps is currently 

working on a draft version of their 

update of this INRMP which further 

addresses management and 

conservation of Monardella linoides ssp. 

viminea. This updated plan includes 

detailed mapping of M. l. ssp. viminea, 

places 99 percent of the point 

occurrences in areas that focus on 

natural resource management referred 

specifically to as ‘‘Level Two 

Management Areas,’’ and outlines 

specific projects that will be funded to 

aid in the conservation of M. l. ssp. 

viminea (pers. comm. David Boyer, 

Director, Natural Resources Division, 

Environmental Management 

Department, MCAS Miramar to Jonathan 

Snapp-Cook, Fish and Wildlife 

Biologist, Service, October 4, 2005). The 

updated INRMP will provide additional 

benefits to M. l. ssp. viminea. 

The following figure shows the areas 

of MCAS Miramar that we are 

exempting from critical habitat 

designation under section 4(a)(3) of the 

Act: 

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Relationship of Critical Habitat to 

Habitat Conservation Plans—Possible 

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

Act 

San Diego Multiple Species 

Conservation Program (MSCP) 

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

critical habitat shall be designated, and 

revised, on the basis of the best 

available scientific data available after 

taking into consideration the economic 

impact, impact on national security, and 

any other relevant impact, of specifying 

any particular area as critical habitat. 

An area may be excluded from critical 

habitat if it is determined that the 

benefits of such exclusion outweigh the 

benefits of specifying the area as critical 

habitat, unless the failure to designate 

such area will result in the extinction of 

the species. Consequently, we may 

exclude an area from critical habitat 

based on economic impacts, impacts on 

national security, or other relevant 

impacts such as preservation of 

conservation partnerships, if we 

determine the benefits of excluding an 

area from critical habitat outweigh the 

benefits of including the area in critical 

habitat, provided the action of 

excluding the area will not result in the 

extinction of the species. 

Below, we first provide some general 

background information on the San 

Diego MSCP, followed by an analysis 

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

the benefits of including San Diego 

MSCP lands within the critical habitat 

designation, an analysis of the benefits 

of excluding these lands, and an 

analysis of why we believe the benefits 

of exclusion are greater than those of 

inclusion. Finally, we provide a 

determination that exclusion of these 

lands would not result in extinction of 

Monardella linoides ssp. viminea. 

We are considering excluding from 

critical habitat designation 

approximately 494 ac (200 ha) of nonFederal lands within the City of San 

Diego subarea plan and the County of 

San Diego subarea plan of the San Diego 

MSCP under section 4(b)(2) of the Act. 

Monardella linoides ssp. viminea is a 

covered species under these two 

approved and legally operative subarea 

plans. We completed our section 7 

consultations on the issuance of the 

section 10(a)(1)(B) permit for the City of 

San Diego subarea plan on June 6, 1997, 

and on the permit for the County of San 

Diego subarea plan on March 12, 1988. 

These HCPs provide special 

management and protection for the 

physical and biological features 

essential for the conservation of M. l. 

ssp. viminea that exceed the level of 

regulatory control that would be 

afforded this species by the designation 

of critical habitat. We believe that the 

benefits of excluding essential habitat 

covered by these HCPs from the critical 

habitat designation would outweigh the 

benefits of including them as critical 

habitat, and that the exclusion under 

consideration would not result in the 

extinction of M. l. ssp. viminea. 

In southwestern San Diego County, 

the MSCP effort encompasses more than 

582,000 ac (236,000 ha) and anticipates 

the participation of 12 jurisdictions. 

Under the broad umbrella of the MSCP, 

each of the 12 participating jurisdictions 

prepares a Subarea Plan that 

implements the goals of the MSCP 

within that particular jurisdiction. 

Three of the 12 jurisdictions cover lands 

that support Monardella linoides ssp. 

viminea. Two of the jurisdictions, 

County of San Diego and the City of San 

Diego, have completed subarea plans. 

The third jurisdiction, the City of 

Santee, is currently preparing its 

subarea plan. We conduct a consultation 

on each subarea plan and associated 

permit under section 7 of the Act to 

ensure they are not likely to result in 

jeopardy, or adversely modify or destroy 

the designated critical habitat, of any 

covered species. We also review the 

plans under Section 10 of the Act to 

ensure they meet the criteria for 

issuance of an incidental take permit 

and are consistent with the terms and 

goals of the MSCP. As noted above, we 

completed each of these analyses prior 

to approving the City and County of San 

Diego subarea plans and incidental take 

permits. 

The regional MSCP is also a regional 

subarea plan under the State of 

California’s Natural Communities 

Conservation Plan (NCCP) program and 

was developed in cooperation with 

California Department of Fish and Game 

(CDFG). Over the 50 year term of the 

City and County permits, the MSCP 

provides for the establishment of 

approximately 171,000 ac (69,573 ha) of 

preserve lands within the Multi-Habitat 

Planning Area (MHPA) (City of San 

Diego) and Pre-Approved Mitigation 

Areas (PAMA) (County of San Diego) to 

benefit the 85 federally listed and 

sensitive species, including Monardella 

linoides ssp. viminea, covered under the 

plan. Private lands within the MHPA 

and PAMA lands are subject to special 

restrictions on development and, as they 

are committed to the preserve, must be 

legally protected and permanently 

managed to conserve the covered 

species. Public lands owned by the City 

and County and by the State of 

California and Federal government that 

are identified for conservation under the 

MSCP must also be protected and 

permanently managed to protect the 

covered species. The MSCP requires the 

City and County to develop broad 

framework and site specific 

management plans, subject to the review 

and approval of the Service and CDFG, 

to guide the management of all preserve 

lands under City and County control. 

The plans incorporate requirements to 

monitor and adaptively manage M. l. 

ssp. viminea habitats over time. Under 

the MSCP, the State and Federal 

governments have also committed to 

provide similar management for their 

preserve lands. 

As discussed above, each take 

authorization holder will prepare a 

framework management plan as a 

condition of its implementing 

agreement. The framework management 

plan will provide general direction for 

all preserve management issues within 

the subarea plan’s boundaries. Areaspecific management directives will be 

developed for managing lands that are 

conserved as part of the reserves. The 

framework and area-specific 

management plans are comprehensive 

and address a broad range of 

management needs at the preserve and 

species levels. These plans include the 

following: (1) Fire management, (2) 

public access control, (3) fencing and 

gates, (4) ranger patrol, (5) trail 

maintenance, (6) visitor/interpretive and 

volunteer services, (7) hydrological 

management, (8) signage and lighting, 

(9) trash and litter removal, (10) access 

road maintenance, (11) enforcement of 

property and/or homeowner 

requirements, (12) removal of invasive 

species, (13) nonnative predator control, 

(14) species monitoring, (15) habitat 

restoration, (16) management for diverse 

age classes, (17) use of herbicides and 

rodenticides, (18) biological surveys, 

(19) research, and (20) species 

management conditions (Final MSCP 

Plan 1998). These management 

measures benefit Monardella linoides 

ssp. viminea and reduce the threats to 

this species. The MSCP also provides 

for a biological monitoring program, and 

M. l. ssp. viminea is identified as a first 

priority plant species for field 

monitoring (Ogden Environmental and 

Energy Services 1996). Species 

prioritized for field monitoring (like M. 

l. ssp. viminea) face the greatest threats 

to their viability, and detailed field 

monitoring would assess both 

immediate threats and long-term 

population trends. The City of San 

Diego monitors M. l. ssp. viminea on an 

annual basis (City of San Diego 2000, 

2001, 2002, 2003, and 2004). Moreover, 

the rare plant monitoring plan is being 

updated with the assistance of the U.S. 

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Geological Survey Biological Research 

Division and a three member 

independent scientific advisory group. 

In addition to the restrictions on 

development and conservation 

obligations that apply within the MHPA 

and PAMA, the MSCP incorporates 

processes to protect sensitive species of 

limited distribution, including 

Monardella linoides ssp. viminea, 

within the plan area. Under the City of 

San Diego’s subarea plan, impacts to 

narrow endemic species inside the 

MHPA will be avoided and outside the 

MHPA will be protected as appropriate 

by (1) avoidance, (2) management, (3) 

enhancement, and/or (4) transplantation 

to areas identified for preservation. 

Under the County of San Diego’s 

subarea plan, narrow endemic plants, 

including M. l. ssp. viminea, would be 

conserved under their Biological 

Mitigation Ordinance using a process 

that (1) requires avoidance to the 

maximum extent feasible, (2) allows for 

a maximum 20 percent encroachment 

into a population if total avoidance is 

not feasible, and (3) requires mitigation 

at the 1:1 to 3:1 (in kind) for impacts if 

avoidance and minimization of impacts 

would result in no reasonable use of the 

property. Thus, these processes to 

protect narrow endemic plants, 

including M. l. ssp. viminea, whether 

located on lands targeted for preserve 

status within the MHPA and PAMA or 

located outside of those areas, ensure 

these limited distribution species are 

protected wherever they occur. 

Considered as a whole, the protection 

and management of M. l. ssp. viminea 

provided under the City and County 

subarea plans will ensure the permanent 

conservation of this species and its 

habitat within the areas covered by the 

plans. 

We are therefore considering 

excluding from critical habitat a portion 

of Sycamore Canyon and all of West 

Sycamore Canyon, Spring Canyon, San 

Clemente Canyon, Elanus Canyon, 

Lopez Canyon, Marron Valley, and Otay 

Lakes under section 4(b)(2) of the Act 

because they are covered by the City 

and the County subarea plans. All of the 

populations of Monardella linoides ssp. 

viminea anticipated to be conserved by 

the MSCP under the City of San Diego 

and County of San Diego subarea plans 

occur in these geographical areas. These 

populations will be conserved and will 

be managed and monitored pursuant to 

or consistent with the MSCP. The 

framework and area-specific 

management plans (described above) 

provide management and monitoring of 

M. l. ssp. viminea. 

The portions of Sycamore Canyon 

(Units 3A, 3B, and 3C) that we are 

considering excluding from critical 

habitat are under City and County 

ownership and are within the reserve 

design of the MHPA and PAMA under 

the City’s and County’s subarea plans. 

The majority of the County-owned 

PAMA lands in Sycamore Canyon has 

already been conserved and is being 

managed for the conservation of covered 

species, including Monardella linoides 

ssp. viminea, consistent with the 

framework and area-specific 

management plans described above. The 

remaining County-owned lands and 

City-owned lands in Sycamore Canyon 

have not yet been formally committed to 

the preserve but will continue to be 

protected through the City’s and 

County’s subarea plans processes to 

protect narrow endemic species 

(described above) until these lands 

become part of the preserve. 

Lands in West Sycamore Canyon 

(Unit 3D) that we are considering 

excluding from critical habitat are under 

City ownership and are within the 

reserve design of the MHPA. These 

lands have been already conserved and 

are being managed for the conservation 

of covered species consistent with the 

framework and area-specific 

management plans described above, 

including Monardella linoides ssp. 

viminea under the City’s subarea plan. 

Lands in Spring Canyon (Unit 3E) that 

we are considering excluding from 

critical habitat are under private 

ownership but are within the reserve 

design of the MHPA and are targeted for 

preservation under the City’s subarea 

plan. The private lands in Spring 

Canyon have not yet been formally 

committed to the preserve, but are 

within an area that calls for 100 percent 

conservation of Monardella linoides ssp. 

viminea. The City of San Diego has 

recently acquired private lands in 

Spring Canyon through the MSCP that 

will benefit M. l. ssp. viminea. 

Populations of M. l. ssp. viminea on the 

remaining private lands will continue to 

be protected through the City’s subarea 

plan process described above to protect 

narrow endemic species until these 

private lands become part of the 

preserve. 

Lands in San Clemente Canyon (Unit 

4) that we are considering excluding 

from critical habitat are under City 

ownership. The majority of these lands 

is within the reserve design of the 

MHPA, has been committed to the 

preserve, and is being managed for the 

conservation of covered species 

consistent with the framework and areaspecific management plans described 

above, including Monardella linoides 

ssp. viminea, under the City’s MSCP 

subarea plan. A small portion of these 

lands is on City-owned lands that are 

not within the MHPA. Populations of M. 

l. ssp. viminea on the remaining Cityowned lands will continue to be 

protected through the City’s subarea 

plan process described above to protect 

narrow endemic species. 

Lands in Elanus Canyon (Unit 5) that 

we are considering excluding from 

critical habitat are under City ownership 

and are within the reserve design of the 

MHPA. They are committed to the 

preserve and are being managed for the 

conservation of covered species, 

including Monardella linoides ssp. 

viminea, under the City’s subarea plan. 

Lands in Lopez Canyon (Unit 6) that 

we are considering excluding from 

critical habitat are under City ownership 

and are within the reserve design of the 

MHPA. The lands are committed to the 

preserve and are being managed for the 

conservation of covered species, 

including Monardella linoides ssp. 

viminea, under the City’s subarea plan. 

Lands in Marron Valley (Unit 7) that 

we are considering excluding from 

critical habitat are under City and State 

ownership and are within the reserve 

design of the MHPA. The City-owned 

lands have been committed to the 

preserve and are being managed for the 

conservation of covered species, 

including Monardella linoides ssp. 

viminea, under the City’s subarea plan. 

Lands in Otay Lakes (Unit 8) that we 

are considering excluding from critical 

habitat are under City of San Diego, City 

of Chula Vista, State of California, and 

private ownership; are within the 

MHPA and PAMA; and are either 

already committed to the preserve or are 

targeted for 100 percent preservation 

under the City’s and County’s subarea 

plans. The lands owned by the City of 

Chula Vista were formerly owned by 

Otay Ranch and were conveyed to the 

City as mitigation of the Otay Ranch 

development. These lands are conserved 

within the County of San Diego’s 

subarea plan. The preserve lands are 

being managed for the conservation of 

the covered species, including 

Monardella linoides ssp. viminea, under 

the City’s and County’s subarea plans 

and pursuant to commitments made by 

the State of California to implement the 

MSCP on state owned lands. Those 

lands not yet formally committed to the 

preserve will continue to be protected 

through the County’s subarea plan 

process described above to protect 

narrow endemic species until these 

lands become part of the preserve. 

The following figures show the San 

Diego MSCP lands that we are 

considering excluding from critical 

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habitat designation under section 4(b)(2) 

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(1) Benefits of Inclusion 

Overall, we believe that there is 

minimal benefit from designating 

critical habitat for Monardella linoides 

ssp. viminea within approved subarea 

plans under the San Diego MSCP. As 

explained above, the majority of these 

lands are either already permanently 

protected and managed for the 

conservation of covered species, 

including M. l. ssp. viminea or are 

subject to restrictions on development 

and City’s and County’s subarea plans’

processes described above to protect 

narrow endemic species. These 

processes will protect narrow endemic 

species, including M. l. ssp. viminea, 

until these lands become part of the 

preserve. Below, we discuss benefits of 

inclusion of these HCP lands. 

A benefit of including an area within 

a critical habitat designation is the 

protection provided by section 7(a)(2) of 

the Act that directs Federal agencies to 

ensure that their actions do not result in 

the destruction or adverse modification 

of critical habitat. The designation of 

critical habitat may provide a level of 

protection under section 7(a)(2) of the 

Act for Monardella linoides ssp. 

viminea that is distinct from the 

obligation of a Federal agency to ensure 

that their actions are not likely to 

jeopardize the continued existence of 

the endangered species. Gifford Pinchot 

arguably makes it easier to reach an 

‘adverse modification’ finding by 

reducing the harm or affecting recovery, 

rather than the survival of the species. 

Thus, under the Gifford Pinchot 

decision, critical habitat designations 

may provide greater benefits to the 

recovery of a species than was 

previously believed, but it is not 

possible to quantify this benefit at 

present. However, there is also an 

important limitation inherent in section 

7(a)(2). This provision limits adverse 

effects to the species and its designated 

critical habitat either through jeopardy 

or destruction or adverse modification 

analyses. It does not require positive 

improvements to or enhancement of the 

species’ status. Thus, any management 

plan will almost always provide more 

benefit than the critical habitat 

designation, particularly where, as is the 

case for M. l. ssp. viminea, the species 

may require active management to 

recover. 

The areas being considered for 

exclusion from critical habitat are 

currently occupied by the species. 

Therefore, for Federal actions that may 

affect lands occupied by Monardella 

linoides ssp. viminea and may adversely 

affect the species, consultation would be 

required, even without the critical 

habitat designation under section 7 of 

the Act. If these areas were designated 

as critical habitat, any actions with a 

Federal nexus which might adversely 

affect the critical habitat would require 

a consultation with us, as explained 

previously in Effects of Critical Habitat 

Designation section, and their PCEs 

would be protected from destruction or 

adverse modification using a 

conservation standard based on the 

Ninth Circuit Court’s decision in Gifford 

Pinchot. This requirement would be in 

addition to the requirement that 

proposed Federal actions avoid likely 

jeopardy to the species’ continued 

existence. Thus, a potential benefit of 

critical habitat would be the 

requirement of Federal agencies to 

ensure their actions do not result in the 

destruction or adverse modification of 

critical habitat pursuant to section 

7(a)(2) of the Act. We believe that the 

affirmative management and protection 

afforded essential habitat of M. l. ssp. 

viminea under the approved MSCP 

subarea plans provides permanent 

conservation benefits to the species in 

excess of those likely to result through 

the regulatory requirement to avoid 

adverse modification of critical habitat 

under Section 7. Therefore the 

additional conservation benefit, if any, 

of designating critical habitat on lands 

covered by approved MSCP subarea 

plans, would be minimal. 

Another potential benefit of 

designation would be to signal the 

importance of these lands to the 

conservation of Monardella linoides ssp. 

viminea to Federal agencies and to the 

public. In Sierra Club v. Fish and 

Wildlife Service, 245 F.3d 434 (5th Cir. 

2001), the Fifth Circuit Court of Appeals 

stated that the identification of habitat 

containing the features essential to the 

conservation of the species can provide 

informational benefits to the public, 

State and local governments, scientific 

organizations, and Federal agencies. The 

court also noted that heightened public 

awareness of the plight of listed species 

and their habitats may facilitate 

conservation efforts. The inclusion of an 

area as critical habitat may focus and 

contribute to conservation efforts by 

other parties by clearly delineating areas 

of high conservation values for certain 

species. However, we believe that this 

educational benefit has largely been 

achieved for M. l. ssp. viminea. The 

public outreach and environmental 

impact reviews required under the 

National Environmental Policy Act for 

the MSCP, City of San Diego Subarea 

Plan, and County of San Diego Subarea 

Plan provided significant opportunities 

for public education regarding the 

conservation of the areas occupied by 

M. l. ssp. viminea. Under the MSCP, 

annual public meetings are held to 

assess progress being made to 

implement the approved subarea plans 

and protect covered species and their 

habitats. These ongoing public outreach 

efforts ensure that members of the 

public will continue to be made aware 

of the importance of protecting the 

covered species and their habitats and 

will be provided with a continuing 

opportunity to comment on and 

contribute to the MSCP’s conservation 

goals. There would be little additional 

informational benefit gained from 

including these lands as critical habitat 

because of the level of information that 

has been, and continues to be, made 

available to the public as part of the 

regional planning effort. 

In summary, we believe that 

designating any non-Federal lands 

within the City’s and County’s subarea 

plan as critical habitat would provide 

little additional regulatory or 

educational benefits for the species. 

These essential lands are already 

protected under the MSCP and are 

required to be conserved and managed 

for the benefit Monardella linoides ssp. 

viminea through implementation of the 

subarea plans. The additional 

educational benefits that might arise 

from critical habitat designation have 

been and continue to be accomplished 

through the public review and comment 

of the environmental impact documents 

which accompanied the development of 

the San Diego MSCP, periodic public 

meetings to assess the plans, and the 

recognition by the City of San Diego, 

County of San Diego, State of California, 

and Federal agencies of the presence of 

Monardella linoides ssp. viminea and 

the value of their lands for the 

conservation and recovery of the species 

that has already been provided through 

development and implementation of the 

MSCP. 

(2) Benefits of Exclusion 

As mentioned above, the San Diego 

MSCP requires avoidance of impacts to 

Monardella linoides ssp. viminea both 

within and outside of existing and 

targeted reserve areas and provides for 

permanent conservation and active 

management of this species consistent 

with the framework and area-specific 

management plans (described above) 

and its habitat within the MHPA. 

Because the MSCP requires protection 

of the physical and biological features 

essential to the conservation of M. l. ssp. 

viminea and addresses the species’

special management needs, we believe 

that designation of critical habitat 

would not provide an appreciable 

67976 Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Proposed Rules 

benefit to the species beyond those 

achieved through the positive 

conservation measures in the plan. 

The benefits of excluding from critical 

habitat designation lands covered by 

approved MSCP subarea plans include 

relieving landowners, communities, the 

City and the County of any additional 

regulatory burden that might be 

imposed by a critical habitat designation 

consistent with the conservation 

standard based on the Ninth Circuit 

Court’s decision in Gifford Pinchot. 

Many HCPs, particularly large regional 

HCPs such as the MSCP, take many 

years to develop and, upon completion, 

become regional conservation plans that 

essentially implement recovery 

objectives for listed covered species 

within the plan area. Additionally, 

many of these HCPs, including the 

MSCP, provide conservation benefits to 

unlisted, sensitive species. Imposing an 

additional regulatory review after an 

HCP is completed solely as a result of 

the designation of critical habitat may 

undermine conservation efforts and 

result in a loss of species’ benefits if 

participants abandon the HCP process. 

This is particularly true with regard to 

plant species such as Monardella 

linoides ssp. viminea, and unlisted 

species, the coverage of which is 

completely voluntary under an HCP, 

because critical habitat designation may 

result in more regulatory requirements 

than those faced by other parties who 

have not participated in voluntary 

conservation efforts for these species. 

Another benefit of excluding these 

lands is to maintain the partnerships 

developed among the City of San Diego, 

County of San Diego, State of California, 

and the Service to implement the City 

of San Diego Subarea Plan and County 

of San Diego Subarea Plan. Instead of 

using limited funds to comply with 

administrative consultation and 

designation requirements which are 

unlikely to provide protection beyond 

what is currently in place, the partners 

could instead use their limited funds for 

the conservation of this species. 

A related benefit of excluding lands 

within HCPs from critical habitat 

designation is the unhindered, 

continued ability to seek new 

partnerships with future HCP 

participants including States, Counties, 

local jurisdictions, conservation 

organizations, and private landowners, 

which together can implement 

conservation actions that we would be 

unable to accomplish otherwise. A 

primary objective of applicants 

developing multiple species regional 

HCPs is to streamline future regulatory 

requirements. If lands within HCP plan 

areas are designated as critical habitat 

and required to undergo subsequent 

Section 7 consultation based solely on 

critical habitat designation, it would 

likely have a negative effect on our 

ability to establish new partnerships to 

develop HCPs, particularly large, 

regional HCPs that involve numerous 

participants and address landscapelevel conservation of species and 

habitats. By excluding these lands, we 

would preserve our current partnerships 

and encourage additional conservation 

actions in the future. 

Furthermore, an HCP or NCCP/HCP 

application must itself be consulted 

upon. While this consultation will not 

look specifically at the regulatory 

prohibition against adverse modification 

of critical habitat unless critical habitat 

has already been designated within the 

proposed plan area, the consultation 

will determine if the HCP is likely to 

jeopardize the species in the plan area. 

Since the objective of virtually all 

habitat conservation plans is to protect 

the covered species by conserving their 

essential habitat within the plan area, an 

important component of the Section 7 

jeopardy review is an analysis of the 

effects of the covered activities on this 

essential habitat. In the biological 

opinions completed for the San Diego 

MSCP, the Service concluded that 

implementation of the plan is not likely 

to result in jeopardy to the species 

directly or through habitat loss. HCPs 

and NCCP/HCPs, including the MSCP, 

typically provide for greater 

conservation benefits to covered species 

than section 7 consultations because 

they include proactive long-term 

protection and management of covered 

species and their habitats, along with 

assured funding for such management 

through the standards found in the 5 

Point Policy for HCPs (June 1, 2000; 64 

FR 35242) and the HCP ‘‘No Surprises’’

regulation (February 23, 1998; 63 FR 

8859). Such assurances are typically not 

provided by section 7 consultations 

that, in contrast to HCPs, often do not 

commit the project proponent to longterm special management or protections. 

Thus, a consultation typically does not 

accord the lands it covers the extensive 

benefits a HCP or NCCP/HCP provides. 

The development and implementation 

of HCPs or NCCP/HCPs provide other 

important conservation benefits, 

including the development of biological 

information to guide the conservation 

efforts and assist in species 

conservation, and the creation of 

innovative solutions to conserve species 

while allowing for development. In 

summary, the benefits of excluding 

lands covered by approved HCP and 

HCP/NCCPs generally, and the City and 

County approved MSCP subarea plans 

in particular, include the preservation of 

existing partnerships and conservation 

efforts and the cultivation of new 

partnerships in the future by 

eliminating largely duplicative 

regulatory requirements that can serve 

as a disincentive to development and 

implementation of these conservation 

plans. This benefit is particularly 

important with regard to Monardella 

linoides ssp. viminea, which as a listed 

plant species is not subject to the Act’s 

section 9 prohibition against take. The 

affirmative conservation measures 

provided for this species under the 

MSCP are entirely voluntary. 

(3) Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

We have reviewed the proposed 

exclusion from critical habitat of 

approximately 494 ac (200 ha) of nonFederal lands covered by approved 

subarea MSCP subarea plans and based 

on this review, we believe that the 

benefits of exclusing (avoidance of 

increased regulatory costs which could 

result from including those lands in this 

designation of critical habitat, 

maintaining existing conservation 

partnerships, encouraging new 

conservation partnerships, and directing 

limited funding to proactive 

conservation actions with partners) 

those lands containing features essential 

to the conservation of M. l. ssp. viminea 

outweigh the benefits of including 

(limited educational and regulatory 

benefits, which are largely duplicative 

of those provided for under the MSCP) 

the lands in our critical habitat 

designation. The benefits of inclusion of 

these 494 ac (200 ha) of non-Federal 

lands as critical habitat are small 

because of the significant level of 

conservation already provided to the M. 

l. ssp. viminea and its habitat under the 

San Diego MSCP (conservation of 

occupied and potential habitat). These 

minimal benefits are outweighed by the 

significant benefits of preserving our 

long term partnership with the City of 

San Diego, County of San Diego, and 

State of California and encouraging 

similar future conservation partnerships 

with others through the exclusion of 

these 494 ac (200 ha) of non-Federal 

lands. 

(4) Exclusion Will Not Result in 

Extinction of the Species 

Exclusion of these 494 ac (200 ha) of 

non-Federal lands would not result in 

extinction of Monardella linoides ssp. 

viminea because these lands will be 

permanently conserved and managed 

for the benefit of this species pursuant 

to the approved MSCP subarea plans. 

Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Proposed Rules 67977 

The jeopardy standard of section 7 

and routine implementation of habitat 

conservation through the section 7 

process also provide assurances that the 

species will not go extinct. The 

exclusion leaves these protections 

unchanged from those that would exist 

if these areas were designated as critical 

habitat. 

Possible Exclusion of Critical Habitat 

Within the Bureau of Land 

Management Otay Mountain 

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

Act 

Federal lands managed by the Bureau 

of Land Management (BLM) are an 

integral part of the conservation strategy 

of San Diego MSCP. However, BLM, like 

any other Federal agency, is not a 

permittee under the section 10(a)(1)(B) 

permit for the San Diego MSCP. The 

BLM, Service, CDFG, City of San Diego, 

and County of San Diego, in cooperation 

with the San Diego Association of 

Governments (SANDAG) signed a MOU 

in June 1994 committing to cooperate in 

habitat conservation planning and 

management related to the San Diego 

MSCP. Under the MOU, BLM agreed to 

take the following actions to assist in 

implementing the MSCP’s conservation 

goals and objectives: (1) To make 

maintenance and management of the 

area’s unique biological diversity a 

principal goal in the design and 

implementation of its conservation 

programs; (2) to coordinate with the 

other signatory parties regarding 

assessment of the wildlife values of 

those lands managed by BLM within 

San Diego County; (3) to coordinate 

with signatory parties to resolve any 

BLM, State, regional and/or local land 

management prescriptions that are 

inconsistent with existing or proposed 

conservation objectives; (4) to work with 

the County, the City, SANDAG, CDFG, 

and Service in identifying the lands it 

manages for inclusion within the 

region’s habitat conservation systems; 

and (5) to work with signatory parties to 

acquire key habitat areas using a variety 

of techniques. Thus, while not a 

permittee to the section 10(a)(1)(B) 

permit for the San Diego MSCP, BLM 

lands, in particular those on Otay 

Mountain that support a variety of listed 

and sensitive covered MSCP species, are 

a key component of the overall reserve 

design for the MSCP. 

At the time of the MOU, Monardella 

linoides ssp. viminea was not known to 

occur on BLM lands at Otay Mountain. 

Since the development and approval of 

the San Diego MSCP, new information 

has identified a previously unknown 

population of M. l. ssp. viminea on BLM 

lands at West Otay Mountain. Surveys 

in 2000 counted 202 clumps of M. l. ssp. 

viminea, making this occurrence the 

fourth largest population at that time. 

The populations of M. l. ssp. viminea on 

BLM lands at Otay Mountain are within 

the area covered by the MOU. Congress 

formally designated BLM lands on Otay 

Mountain as the Otay Mountain 

Wilderness in 1999 (Otay Mountain 

Wilderness Act, Pub. L. 106–145, 

December 9, 1999). The occurrences of 

M. l. ssp. viminea on Otay Mountain are 

within the designated boundaries of the 

Otay Mountain Wilderness. The 

inclusion of these occupied habitats 

within a designated Wilderness provide 

additional significant protection for this 

area and complement BLM’s objective to 

manage these public lands to provide 

protection and enhancement for 

biological values. The Wilderness Act of 

1964 (16 U.S.C. 1131 et seq.) restricts 

vehicles, new developments, chainsaws, 

mountain bikes, leasing, and mining 

from the wilderness area. Grazing is 

permitted within the wilderness area; 

however, no grazing allotments 

currently exist. Thus, the population of 

M. l. ssp. viminea on BLM land receives 

conservation protection consistent with 

the Otay Mountain Wilderness, MOU, 

and San Diego MSCP. We are therefore 

considering excluding from critical 

habitat Unit 9 for approximately 67 ac 

(27 ha) of Federal lands managed by the 

BLM within the designated Otay 

Mountain Wilderness and targeted for 

conservation under the MOU for the San 

Diego MSCP under section 4(b)(2) of the 

Act. 

The following figure shows the areas 

of BLM lands that we are considering 

excluding from critical habitat 

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

Act: 

BILLING CODE 4310–55–P 

67978 Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Proposed Rules 

BILLING CODE 4310–55–C 


EP09NO05.009</GPH>
Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Proposed Rules 67979 

(1) Benefits of Inclusion 

Overall, we believe that there is 

minimal benefit from designating 

critical habitat for Monardella linoides 

ssp. viminea on BLM lands because the 

habitat essential for this species on Otay 

Mountain is already conserved within 

the Otay Mountain Wilderness and is 

targeted for conservation under the 

MOU for the San Diego MSCP as 

explained above. 

The primary benefit of including an 

area within a critical habitat designation 

is the protection provided by section 

7(a)(2) of the Act that directs Federal 

agencies to ensure that their actions do 

not result in the destruction or adverse 

modification of critical habitat. The 

designation of critical habitat may 

provide a different level of protection 

under section 7(a)(2) of the Act for M. 

l. ssp. viminea that is separate from the 

obligation of a Federal agency to ensure 

that their actions are not likely to 

jeopardize the continued existence of 

the endangered species. Under the 

Gifford Pinchot decision, critical habitat 

designations may provide greater 

benefits to the recovery of a species than 

was previously believed, but it is not 

possible to quantify this benefit at 

present. However, the protection 

provided is still a limitation on the 

adverse effects that occur as opposed to 

a requirement to provide a conservation 

benefit. 

The inclusion of these 67 ac (27 ha) 

of Federal land in critical habitat 

designation is unlikely to provide any 

additional Federal regulatory benefits 

for the species consistent with the 

conservation standard based on the 

Ninth Circuit Court’s decision in Gifford 

Pinchot. Inclusion of this area in critical 

habitat would require Federal agencies 

to ensure that their actions on these 

Federal lands are not likely to result in 

the destruction or adverse modification 

of critical habitat. The potential benefits 

resulting from this additional analysis to 

determine destruction or adverse 

modification of critical habitat are likely 

to be minimal to nonexistent because 

the extensive restrictions on permitted 

uses and the prohibition on 

development of designated wilderness 

lands virtually eliminates the possibility 

of future Federal actions likely to 

negatively impact essential habitat for 

Monardella linoides ssp. viminea within 

this area. Further, in contrast to section 

7(a)(2) of the Act, the wilderness 

designation and MOU go well beyond a 

simple requirement to avoid adverse 

modification of critical habitat. BLM has 

demonstrated its proactive commitment 

to the conservation goals and objectives 

of the MSCP by entering into the 1994 

MOU and committing to manage its 

public lands for the benefit of M. l. ssp. 

viminea and other covered species. 

Another potential benefit of critical 

habitat would be to signal the 

importance of these lands to Federal 

agencies, scientific organizations, State 

and local governments, and the public 

to encourage conservation efforts to 

benefit M. l. ssp. viminea and its habitat. 

However, as discussed above, the 

importance of protecting the biological 

resource values of these lands, 

including M. l. ssp. viminea, has already 

been clearly and effectively 

communicated to Federal, State, and 

local agencies and other interested 

organizations and members of the 

public through designation of the lands 

as wilderness as well as through the 

1994 MOU. 

(2) Benefits of Exclusion 

As mentioned above, the Otay 

Mountain Wilderness designation 

provides significant levels of protection, 

and the MOU provides for the 

management and protection of 

Monardella linoides ssp. viminea on 

lands managed by the BLM consistent 

with the San Diego MSCP. Through 

these mechanisms, the physical and 

biological features essential for the 

conservation of M. l. ssp. viminea will 

be protected and managed. We believe 

that designation of critical habitat 

would not provide any meaningful 

additional benefit to the species and its 

habitat beyond those provided through 

Otay Mountain Wilderness designation 

and the 1994 MSCP MOU. 

A benefit of excluding Federal lands 

within the Otay Mountain Wilderness 

and the MOU from critical habitat 

designation includes relieving Federal 

agencies of any unnecessary additional 

regulatory burden that might be 

imposed by a critical habitat 

designation. As noted above, this benefit 

is likely to be minimal since the 

wilderness designation prohibits 

virtually all development and use of 

these lands that might adversely modify 

designated critical habitat. The 

exclusion of these Federal lands as 

critical habitat does not remove the 

obligation of a Federal agency to ensure 

that their actions are not likely to 

jeopardize the continued existence of M. 

l. ssp. viminea or to comply with the 

Otay Mountain Wilderness Act. 

Another benefit from excluding these 

lands is to maintain the partnerships 

developed among BLM, Service, State of 

California, City of San Diego, and the 

County of San Diego to manage the Otay 

Mountain Wilderness and implement 

the San Diego MSCP. Instead of using 

limited funds to comply with 

administrative consultation and 

designation requirements that cannot 

provide protection beyond what is 

currently in place, the partners could 

instead use their limited funds for the 

conservation of this species. By 

excluding these lands, we would 

preserve our current partnerships. 

(3) Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

We believe that the benefits of 

exclusion (avoiding the costs in money 

and time of duplicative and unnecessary 

Section 7 consultations) of the lands 

containing features essential to the 

conservation of Monardella linoides ssp. 

viminea within the designated Otay 

Mountain Wilderness, although 

minimal, outweigh the even more 

minimal benefits of inclusion (potential 

educational and regulatory benefits that 

are already provided and exceeded 

under the Otay Mountain Wilderness 

Act and MOU) of these lands as critical 

habitat. 

Critical habitat designation is 

anticipated to provide little or no 

additional benefit to Monardella 

linoides ssp. viminea on BLM lands. 

The primary benefit of any critical 

habitat is that activities that require 

Federal funding, permitting, or 

authorization, and which may affect 

critical habitat, require consultation 

pursuant to section 7 of the Act to 

ensure the activity will not destroy or 

adversely modify designated critical 

habitat. This benefit is already present 

by virtue of the inclusion of the 

occupied habitat within the Otay 

Mountain Wilderness. The educational 

benefits of critical habitat, including 

informing the public of areas that are 

important to the conservation of listed 

species, are already in place as a result 

of the enactment of the Otay Mountain 

Wilderness legislation and the approval 

and ongoing implementation of the 

MSCP. For these reasons, we believe 

that the inclusion of critical habitat on 

BLM lands would provide virtually no 

benefit. 

After weighing the minimal benefits 

of including these lands as critical 

habitat against the slightly greater 

benefits derived from excluding these 

lands as critical habitat, we are 

considering excluding from critical 

habitat BLM lands within the Otay 

Mountain Wilderness pursuant to 

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

(4) Exclusion Will Not Result in 

Extinction of the Species 

The proposed exclusion of these 67 ac 

(27 ha) of Federal lands would not 

result in extinction of Monardella 

linoides ssp. viminea because these 

lands will be permanently protected for 

67980 Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Proposed Rules 

the benefit of this species and its 

essential habitat pursuant to the Otay 

Mountain Wilderness Act and will be 

actively managed pursuant to the 1994 

MOU. The protection of the Otay 

Mountain population of Monardella 

linoides ssp. viminea and its habitat, 

along with the conservation of the 

remaining populations and essential 

habitat of this species under the San 

Diego MSCP and MCAS Miramar 

INRMP, will ensure the species’

continued existence. 

The jeopardy standard of section 7 

and routine implementation of 

conservation measures through the 

section 7 process also provide 

assurances that the species will not go 

extinct. The exclusion under 

consideration leaves these protections 

unchanged from those that would exist 

if the subject areas were designated as 

critical habitat. 

We have not included legal 

descriptions or maps of the areas we are 

exempting (under section 4(a)(3) of the 

Act) or excluding (under section 4(b)(2) 

of the Act) in the rule portion of this 

document. As mentioned above, 

however, we are soliciting public 

comment on whether the exemption or 

possible exclusions are appropriate for 

the subject lands. 

Economic Analysis 

An analysis of the economic impacts 

of the proposed critical habitat 

designation for Monardella linoides ssp. 

viminea will be prepared soon. We will 

announce the availability of the draft 

economic analysis as soon as it is 

completed, at which time we will seek 

public review and comment. At that 

time, copies of the draft economic 

analysis will be available for 

downloading from the Internet at 

http://carlsbad.fws.gov, or by contacting 

the Carlsbad Fish and Wildlife Office 

directly (see ADDRESSES section). 

Peer Review 

In accordance with our joint policy 

published in the Federal Register on 

July 1, 1994 (59 FR 34270), 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 that 

our critical habitat designation is 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 

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 in writing at least 15 days 

prior to the close of the public comment 

period (see DATES section). We will 

schedule public hearings on this 

proposal, if any are requested, and 

announce the dates, times, and places of 

those hearings in the Federal Register 

and local newspapers at least 15 days 

prior to the first hearing. 

Clarity of the Rule 

Executive Order 12866 requires each 

agency to write regulations and notices 

that are easy to understand. We invite 

your comments on how to make this 

proposed rule easier to understand, 

including answers to questions such as 

the following: (1) Are the requirements 

in the proposed rule clearly stated? (2) 

Does the proposed rule contain 

technical jargon that interferes with the 

clarity? (3) Does the format of the 

proposed rule (grouping and order of 

the sections, use of headings, 

paragraphing, and so forth) aid or 

reduce its clarity? (4) Is the description 

of the notice in the SUPPLEMENTARY

INFORMATION section of the preamble 

helpful in understanding the proposed 

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

this proposed rule easier to understand? 

Send a copy of any comments on how 

we could make this proposed rule easier 

to understand to: Office of Regulatory 

Affairs, Department of the Interior, 

Room 7229, 1849 C Street, NW., 

Washington, DC 20240. You may e-mail 

your comments to this address: 

Exsec@ios.doi.gov. 

Required Determinations 

Regulatory Planning and Review 

In accordance with Executive Order 

(E.O.) 12866, this document is a 

significant rule in that it may raise novel 

legal and policy issues, but it is not 

anticipated to have an annual effect on 

the economy of $100 million or more or 

affect the economy in a material way. 

Due to the tight timeline for publication 

in the Federal Register, the Office of 

Management and Budget (OMB) has not 

formally reviewed this rule. We are 

preparing a draft economic analysis of 

this proposed action, which will be 

available for public comment, to 

determine the economic consequences 

of designating the specific area as 

critical habitat. This economic analysis 

also will be used to determine 

compliance with E.O. 12866, Regulatory 

Flexibility Act, Small Business 

Regulatory Enforcement Fairness Act, 

and E.O. 12630. 

Within these areas, the types of 

Federal actions or authorized activities 

that we have identified as potential 

concerns are listed above in the section 

on Section 7 Consultation. The 

availability of the draft economic 

analysis will be announced in the 

Federal Register and in local 

newspapers so that it is available for 

public review and comments. The draft 

economic analysis will be available 

from the Internet Web site at http:// 

carlsbad.fws.gov or by contacting the 

CFWO directly (see ADDRESSES section). 

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

et seq.) 

Our assessment of economic effect 

will be completed prior to final 

rulemaking based upon review of the 

draft economic analysis prepared 

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

and E.O. 12866. This analysis is for the 

purposes of compliance with the 

Regulatory Flexibility Act and does not 

reflect our position on the type of 

economic analysis required by New 

Mexico Cattle Growers Assn. v. U.S. 

Fish & Wildlife Service 248 F.3d 1277 

(10th Cir. 2001). 

Under the Regulatory Flexibility Act 

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

Small Business Regulatory Enforcement 

Fairness Act (SBREFA) of 1996), 

whenever an agency is required to 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effects of the rule on small 

entities (i.e., small businesses, small 

organizations, and small government 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of the agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. The SBREFA amended the 

Regulatory Flexibility Act (RFA) to 

require Federal agencies to provide a 

statement of the factual basis for 

certifying that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

At this time, the Service lacks the 

available economic information 

necessary to provide an adequate factual 

basis for the required RFA finding. 

Therefore, the RFA finding is deferred 

until completion of the draft economic 

analysis is prepared pursuant to section 

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

Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Proposed Rules 67981 

draft economic analysis will provide the 

required factual basis for the RFA 

finding. Upon completion of the draft 

economic analysis, the Service will 

publish a notice of availability of the 

draft economic analysis of the proposed 

designation and reopen the public 

comment period for the proposed 

designation for an additional 60 days. 

The Service will include with the notice 

of availability, as appropriate, an initial 

regulatory flexibility analysis or a 

certification that the rule will not have 

a significant economic impact on a 

substantial number of small entities 

accompanied by the factual basis for 

that determination. The Service has 

concluded that deferring the RFA 

finding until completion of the draft 

economic analysis is necessary to meet 

the purposes and requirements of the 

RFA. Deferring the RFA finding in this 

manner will ensure that the Service 

makes a sufficiently informed 

determination based on adequate 

economic information and provides the 

necessary opportunity for public 

comment. 

Executive Order 13211 

On May 18, 2001, the President issued 

Executive Order (E.O.) 13211 on 

regulations that significantly affect 

energy supply, distribution, and use. E. 

O. 13211 requires agencies to prepare 

Statements of Energy Effects when 

undertaking certain actions. This 

proposed rule to designate critical 

habitat for Monardella linoides ssp. 

viminea is not a significant regulatory 

action under E. O. 12866, and it is not 

expected to significantly affect energy 

supplies, distribution, or use. Therefore, 

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), 

the Service makes the following 

findings: 

(a) This rule will not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute, or regulation that would impose 

an enforceable duty upon State, local, 

tribal governments, or the private sector 

and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’

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

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

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or tribal governments’’

with two exceptions. It excludes ‘‘a 

condition of Federal assistance.’’ It also 

excludes ‘‘a duty arising from 

participation in a voluntary Federal 

program,’’ unless the regulation ‘‘relates 

to a then-existing Federal program 

under which $500,000,000 or more is 

provided annually to State, local, and 

tribal governments under entitlement 

authority,’’ if the provision would 

‘‘increase the stringency of conditions of 

assistance’’ or ‘‘place caps upon, or 

otherwise decrease, the Federal 

Government’s responsibility to provide 

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

governments ‘‘lack authority’’ to adjust 

accordingly. At the time of enactment, 

these entitlement programs were: 

Medicaid; AFDC work programs; Child 

Nutrition; Food Stamps; Social Services 

Block Grants; Vocational Rehabilitation 

State Grants; Foster Care, Adoption 

Assistance, and Independent Living; 

Family Support Welfare Services; and 

Child Support Enforcement. ‘‘Federal 

private sector mandate’’ includes a 

regulation that ‘‘would impose an 

enforceable duty upon the private 

sector, except (i) a condition of Federal 

assistance or (ii) a duty arising from 

participation in a voluntary Federal 

program.’’

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. While nonFederal entities that receive Federal 

funding, assistance, or permits, or that 

otherwise require approval or 

authorization from a Federal agency for 

an action, may be indirectly impacted 

by the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply; nor would critical habitat 

shift the costs of the large entitlement 

programs listed above on to State 

governments. 

(b) We do not believe that this rule 

will significantly or uniquely affect 

small governments because the 

proposed critical habitat is on private 

lands and Padre Dam Municipal Water 

District lands. As such, a Small 

Government Agency Plan is not 

required. We will, however, further 

evaluate this issue as we conduct our 

economic analysis and revise this 

assessment if appropriate. 

Federalism 

In accordance with E.O. 13132, the 

rule does not have significant 

Federalism effects. A Federalism 

assessment is not required. In keeping 

with DOI policy, we requested 

information from, and coordinated 

development of, this proposed critical 

habitat designation with the State of 

California Resources Agency. The 

designation of critical habitat in areas 

currently occupied by Monardella 

linoides ssp. viminea imposes no 

additional restrictions to those currently 

in place and, therefore, has little 

incremental impact on State and local 

governments and their activities. The 

designation may have some benefit to 

these governments in that the areas that 

contain the features essential to the 

conservation of the species are more 

clearly defined, and the PCEs of the 

habitat necessary to the conservation of 

the species are specifically identified. 

While making this definition and 

identification does not alter where and 

what federally sponsored activities may 

occur, it may assist these local 

governments in long-range planning 

(rather than waiting for case-by-case 

section 7 consultations to occur). 

Civil Justice Reform 

In accordance with Executive Order 

12988, the Office of the Solicitor has 

determined that the rule does not 

unduly burden the judicial system and 

meets the requirements of sections 3(a) 

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

proposed designating critical habitat in 

accordance with the provisions of the 

Endangered Species Act. This proposed 

rule uses standard property descriptions 

and identifies the PCEs within the 

designated areas to assist the public in 

understanding the habitat needs of 

Monardella linoides ssp. viminea. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

Reduction Act. This rule will not 

impose recordkeeping or reporting 

requirements on State or local 

governments, individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act 

It is our position that, outside the 

Tenth Circuit, we do not need to 

prepare environmental analyses as 

defined by the NEPA in connection with 

designating critical habitat under the 

67982 Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Proposed Rules 

Endangered Species Act of 1973, as 

amended. We published a notice 

outlining our reasons for this 

determination in the Federal Register 

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

assertion was upheld in the courts of the 

Ninth Circuit (Douglas County v. 

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

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

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951), Executive 

Order 13175, and the Department of 

Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. We 

have determined that there are no Tribal 

lands occupied at the time of listing 

containing the features essential for the 

conservation, and no Tribal lands that 

are unoccupied areas that are essential 

for the conservation of Monardella 

linoides ssp. viminea. Therefore, we are 

proposing no critical habitat for M. l. 

ssp. viminea is not being proposed on 

Tribal lands. 

References Cited 

A complete list of all references cited 

in this rulemaking is available upon 

request from the Field Supervisor, 

Carlsbad Fish and Wildlife Office (see 

ADDRESSES section). 

Author(s) 

The primary author of this package is 

the Carlsbad Fish and Wildlife Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Proposed Regulation Promulgation 

Accordingly, we propose to amend 

part 17, subchapter B of chapter I, title 

50 of the Code of Federal Regulations, 

as set forth below: 

PART 17—[AMENDED] 

1. The authority citation for part 17 

continues to read as follows: 

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

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

625, 100 Stat. 3500; unless otherwise noted. 

2. In § 17.12(h), revise the entry for 

‘‘Monardella linoides ssp. viminea’’

under ‘‘FLOWERING PLANTS’’ to read 

as follows: 

§ 17.12 Endangered and threatened plants. 

* * * * * 

(h) * * * 

Species 

Historic range Family Status When listed Critical 

habitat 

Special 

rules Scientific name Common name 

FLOWERING PLANTS

* * * * * * * 

Monardella linoides 

ssp. viminea.

willowy monardella U.S.A. (CA), Mexico Lamiaceae (Mint 

family).

E 629 17.96(a) NA 

* * * * * * * 

3. In § 17.96(a), add critical habitat for 

Monardella linoides ssp. viminea in 

alphabetical order under Family 

Lamiaceae to read as follows: 

§ 17.96 Critical habitat—plants. 

(a) Flowering plants. 

* * * * * 

Family Lamiaceae: Monardella 

linoides ssp. viminea (willowy 

monardella) 

(1) Critical habitat unit is depicted for 

San Diego County, California, on the 

map below. 

(2) The primary constituent elements 

for Monardella linoides ssp. viminea are 

the habitat components that provide: 

(i) Coarse, rocky, sandy alluvium on 

terraced floodplains, benches, stabilized 

sandbars, channel banks, and sandy 

washes along and within the ephemeral 

drainages that provide space for growth, 

reproduction, and dispersal; 

(ii) Ephemeral drainages where water 

flows only after peak seasonal rains and 

major flooding events, periodically 

scours riparian vegetation, and 

redistributes alluvial material by 

eroding and developing stream 

channels, benches, and sandbars, thus 

maintaining necessary dynamic habitat 

processes for the species; and 

(iii) Coastal sage and riparian scrub 

with an open and semi-open canopy 

and little or no herbaceous understory 

situated along ephemeral drainages and 

adjacent floodplains to ensure that the 

subspecies receives adequate sunlight 

for nutrient uptake for photosynthesis. 

(3) Critical habitat does not include 

manmade structures existing on the 

effective date of this rule and not 

containing one or more of the primary 

constituent elements, such as buildings, 

aqueducts, airports, and roads, and the 

land on which such structures are 

located. 

(4) Data layers defining the map unit 

were created on a base of USGS 7.5′ 

quadrangles, and the critical habitat unit 

was then mapped using a 100-meter grid 

to establish Universal Transverse 

Mercator (UTM) North American Datum 

27 (NAD 27) coordinates which, when 

connected, provided the boundaries of 

the area defined by features essential to 

the conservation of Monardella linoides 

ssp. viminea. 

(5) Unit 1 for Monardella linoides ssp. 

viminea: Sycamore Canyon Unit, San 

Diego County, California. From USGS 

1:24,000 quadrangle San Vicente 

Reservoir. Lands bounded by the 

following UTM NAD27 coordinates 

(E,N): 501900, 3640200; 501700, 

3640200; 501700, 3640100; 501600, 

3640100; 501600, 3640000; 501800, 

3640000; 501800, 3640100; thence east 

to the City of Santee boundary at ycoordinate 3640100; thence south and 

east following the City of Santee 

boundary to x-coordinate 502700; 

thence south following 502700, 

3640000; 502400, 3640000; 502400, 

3639900; thence west to the City of 

Santee boundary at y-coordinate 

3639900; thence north along the City of 

Santee boundary to y-coordinate 

3640300; thence east to 501600, 

3640300; thence north to the City of 

Santee boundary at x-coordinate 

501600; thence west along the City of 

Santee boundary to x-coordinate 

501900; returning to 501900, 3640200; 

and lands bounded by 501400, 3639800; 

501200, 3639800; 501200, 3639700; 

thence west to the City of Santee 

boundary at y-coordinate 3639700; 

thence north along the City of Santee 

boundary to x-coordinate 501400; 

returning to 501400, 3639800; and 

beginning at 501000, 3639600; thence 

west to the City of Santee boundary at 

y-coordinate 3639600; thence northeast 

along the City of Santee boundary to xVerDate Aug<31>2005 16:05 Nov 08, 2005 Jkt 208001 PO 00000 Frm 00052 Fmt 4702 Sfmt 4702 E:\FR\FM\09NOP1.SGM 09NOP1
Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Proposed Rules 67983 

coordinate 501000; returning to 501000, 

3639600; and lands bounded by 500900, 

3639100; 500800, 3639100; 500800, 

3638800; 500700, 3638800; 500700, 

3638500; thence west to the City of 

Santee boundary at y-coordinate 

3638500; thence northeast along the 

City of Santee boundary to x-coordinate 

500900; thence returning to 500900, 

3639100. 

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67984 Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Proposed Rules 


EP09NO05.010</GPH>
Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Proposed Rules 67985 

* * * * * 

Dated: November 1, 2005. 

Craig Manson, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. 05–22190 Filed 11–8–05; 8:45 am] 

BILLING CODE 4310–55–C 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 622 

[Docket No. 051031284–5284–01; I.D. 

102605B] 

RIN 0648–AT64 

Fisheries of the Caribbean, Gulf of 

Mexico, and South Atlantic; Coastal 

Migratory Pelagic Resources of the 

Atlantic; Commercial Spanish 

Mackerel Fishery of the Atlantic; 

Control Date 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Advance notice of proposed 

rulemaking; consideration of a control 

date. 

SUMMARY: This notice announces the 

South Atlantic Fishery Management 

Council (SAFMC) is considering 

additional management measures to 

limit entry into the commercial fishery 

for Spanish mackerel in the exclusive 

economic zone of the Atlantic (South 

Atlantic EEZ). Possible measures 

include the establishment of a limited 

entry program to control participation or 

effort in the commercial Spanish 

mackerel fishery in the Atlantic. If a 

limited entry program is established, the 

SAMFC is considering June 15, 2004, as 

a possible control date. 

DATES: Comments must be submitted by 

December 9, 2005. 

ADDRESSES: You may submit comments 

by any of the following methods: 

• E-mail: 0648–

AT64.ANPR@noaa.gov. Include in the 

subject line of the e-mail comment the 

following document identifier: 0648–

AT64. 

• Federal e-Rulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail: Steve Branstetter, Southeast 

Regional Office, NMFS, 263 13th 

Avenue South, St. Petersburg, FL 33701. 

• Fax: 727–824–5308. 

FOR FURTHER INFORMATION CONTACT: 

Steve Branstetter, 727–824–5305. 

SUPPLEMENTARY INFORMATION: The 

commercial fishery for Spanish 

mackerel in the Atlantic EEZ is 

managed under the Fishery 

Management Plan for the Coastal 

Migratory Pelagic Resources of the 

Atlantic and Gulf of Mexico (FMP). The 

FMP was prepared jointly by the 

SAFMC and the Gulf of Mexico Fishery 

Management Council (GMFMC) and 

implemented under the authority of the 

Magnuson-Stevens Fishery 

Conservation and Management Act. 

The SAFMC anticipates that future 

action may be necessary to control effort 

in the Atlantic Spanish mackerel fishery 

by restricting the number of 

participants. The SAFMC has concerns 

about increasing fishing effort in the 

Atlantic EEZ and wants to prevent the 

possibility of the development of excess 

harvesting capacity for the Spanish 

mackerel fishery of the region. Should 

the SAFMC and GMFMC take future 

action to restrict participation in the 

fishery, they may use June 15, 2004, as 

a possible control date. This control 

date would replace an existing control 

date of July 2, 1993 (58 FR 35914, July 

2, 1993). Implementation of any 

program to restrict access in the Atlantic 

Spanish mackerel fishery would require 

preparation of an amendment to the 

FMP and publication of a notice of 

availability of the amendment with a 

comment period, publication of a 

proposed rule with a public comment 

period, approval of the amendment, and 

issuance of a final implementing rule. 

Consideration of a control date does 

not commit the SAFMC, GMFMC, or 

NMFS to any particular management 

regime or criteria for entry into the 

commercial Spanish mackerel fishery. 

Fishermen are not guaranteed future 

participation in a fishery regardless of 

their entry date or intensity of 

participation in the fishery before or 

after the control date under 

consideration. Use of the control date in 

future management actions would mean 

that anyone entering the fishery after the 

control date would not be assured of 

future access. Nevertheless, even 

fishermen who are permitted prior to 

the control date also are not guaranteed 

future participation in a fishery. The 

SAFMC may choose to give variably 

weighted consideration to fishermen 

active in the fishery before and after the 

control date. Other qualifying criteria, 

such as documentation of landings and 

sales, may be applied for entry into the 

fishery. The SAFMC subsequently may 

choose a different control date, or they 

may choose a management regime 

without using a control date. The 

SAFMC also may choose to take no 

further action to control entry or access 

to the fishery, in which case the control 

date may be rescinded. 

Authority: 16 U.S.C. 1801 et seq. 

Dated: November 4, 2005. 

James W. Balsiger, 

Acting Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

[FR Doc. 05–22364 Filed 11–8–05; 8:45 am] 

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