Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Proposed Rules 73699 

Flooding source(s) Location of referenced elevation 

Elevation in feet 

*(NGVD) 

Elevation in feet 

+(NAVD) Communities affected 

Effective Modified 

Maps are available for inspection at the Williamson County Complex, Planning Department, 1320 West Main Street, Suite 125, Franklin, TN 

37064. 

Send comments to the Honorable Roger Anderson, Mayor, Williamson County, 1320 West Main Street, Suite 125, Franklin, TN 37064. 

City of Brentwood: 

Maps are available for inspection at Brentwood City Hall, 5211 Maryland Way, Brentwood, TN 37027. 

Send comments to the Honorable Ann Dunn, Mayor, City of Brentwood, P.O. Box 788, Brentwood, TN 37024. 

City of Fairview: 

Maps are available for inspection at Fairview City Hall, 1874 Fairview Boulevard, Fairview, TN 37062. 

Send comments to the Honorable Stewart Johnson, Mayor, City of Fairview, P.O. Box 69, Fairview, TN 37062. 

City of Franklin: 

Maps are available for inspection at Franklin City Hall, 109 Third Avenue South, Franklin, TN 37064. 

Send comments to the Honorable Thomas Miller, Mayor, City of Franklin, 109 Third Avenue South, Franklin, TN 37064. 

Town of Nolensville: 

Maps are available for inspection at Nolensville Town Hall, 7240 Nolensville Road, Suite 102, Nolensville, TN 37135. 

Send comments to the Honorable Charles F. Knapper, Mayor, Town of Nolensville, P.O. Box 547, Nolensville, TN 37135. 

City of Spring Hill: 

Maps are available for inspection at Spring Hill City Hall, 199 Town Center Parkway, Spring Hill, TN 37174. 

Send comments to the Honorable Danny Leverette, Mayor, City of Spring Hill, P.O. Box 789, Spring Hill, TN 37174. 

(Catalog of Federal Domestic Assistance No. 

83.100, ‘‘Flood Insurance.’’) 

Dated: December 5, 2005. 

David I. Maurstad, 

Acting Director, Mitigation Division, Federal 

Emergency Management Agency, Department 

of Homeland Security. 

[FR Doc. 05–23949 Filed 12–12–05; 8:45 am] 

BILLING CODE 9110–12–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AU50 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for the Laguna Mountains 

Skipper 

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 Laguna 

Mountains skipper (Pyrgus ruralis 

lagunae), pursuant to the Endangered 

Species Act of 1973, as amended (Act). 

In total, approximately 6,662 acres (ac) 

(2,696 hectares (ha)) fall within the 

boundaries of the proposed critical 

habitat in two units that are divided into 

a total of seven subunits on Laguna and 

Palomar Mountains in San Diego 

County, California. Five subunits are 

occupied. Two subunits are not known 

to be currently occupied or occupied at 

the time of listing, but are connected to 

occupied habitat, were historically 

occupied, and also contain physical and 

biological features essential to the 

conservation of the species. 

DATES: We will accept comments from 

all interested parties until February 13, 

2006. We must receive requests for 

public hearings, in writing, at the 

address shown in the ADDRESSES section 

by January 27, 2006. 

ADDRESSES: If you wish to comment, 

you may submit your comments and 

materials—identified by RIN 1018–

AU50—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, 6010 Hidden Valley Rd., 

Carlsbad, CA 92011. 

2. You may hand-deliver written 

comments to our Office, at the above 

address. 

3. You may fax your comments to 

760–431–9624. 

4. You may send comments by 

electronic mail (e-mail) to 

FW8pchskipper@fws.gov. Please see the 

Public Comments Solicited section 

below for file format and other 

information about electronic filing. 

5. Federal Rulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

Comments and materials received, as 

well as supporting documentation used 

in the preparation of this proposed rule, 

will be available for public inspection, 

by appointment, during normal business 

hours at the Carlsbad Fish and Wildlife 

Office, 6010 Hidden Valley Rd., 

Carlsbad, CA 92011 (telephone 760–

431–9440). 

FOR FURTHER INFORMATION CONTACT: 

Field Supervisor, Carlsbad Fish and 

Wildlife Office, 6010 Hidden Valley Rd., 

Carlsbad, CA 92011, (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. 

Comments particularly are sought 

concerning: 

(1) The reasons any habitat should or 

should not be determined to be critical 

habitat as provided by section 4 of the 

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

whether the benefit of designation will 

outweigh any threats to the species due 

to designation; 

(2) Specific information on the 

amount and distribution of Laguna 

Mountains skipper habitat, and which 

areas should be included in the 

designations that were occupied at the 

time of listing that contain the features 

that are essential for the conservation of 

the species and why, and which areas 

not occupied at the listing are essential 

to the conservation of the species and 

why; 

(3) Land use designations and current 

or planned activities in the subject areas 

73700 Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Proposed Rules 

and their possible impacts on proposed 

critical habitat; 

(4) Any foreseeable economic, 

national security, or other potential 

impacts resulting from the proposed 

designation and, in particular, any 

impacts on small entities; and 

(5) 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). Please 

submit Internet comments to 

FW8pchskipper@fws.gov in ASCII file 

format and avoid the use of special 

characters or any form of encryption. 

Please also include ‘‘Attn: Laguna 

Mountains skipper’’ in your e-mail 

subject header and your name and 

return address in the body of your 

message. If you do not receive a 

confirmation from the system that we 

have received your Internet message, 

contact us directly by calling our 

Carlsbad Fish and Wildlife Office at 

phone number 760–431–9440. Please 

note that the Internet address 

FW8pchskipper@fws.gov will be closed 

out 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. 

Role of Critical Habitat in Actual 

Practice of Administering and 

Implementing the Act 

Attention to and protection of habitat 

is paramount to successful conservation 

actions. The role that designation of 

critical habitat plays in protecting 

habitat of listed species, however, is 

often misunderstood. As discussed in 

more detail below in the discussion of 

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

Act, there are significant limitations on 

the regulatory effect of designation 

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

(1) designation provides additional 

protection to habitat only where there is 

a Federal nexus; (2) the protection is 

relevant only when, in the absence of 

designation, destruction or adverse 

modification of the critical habitat 

would in fact take place (in other words, 

other statutory or regulatory protections, 

policies, or other factors relevant to 

agency decision-making would not 

prevent the destruction or adverse 

modification); and (3) designation of 

critical habitat triggers the prohibition 

of destruction or adverse modification 

of that habitat, but it does not require 

specific actions to restore or improve 

habitat. 

Currently, only 471 species, or 37 

percent of the 1,272 listed species in the 

United States under the jurisdiction of 

the Service, have designated critical 

habitat. We address the habitat needs of 

all 1,272 listed species through 

conservation mechanisms such as 

listing, section 7 consultations, the 

Section 4 recovery planning process, the 

Section 9 protective prohibitions of 

unauthorized take, Section 6 funding to 

the States, the Section 10 incidental take 

permit process, and cooperative, 

nonregulatory efforts with private 

landowners. The Service believes that it 

is these measures that may make the 

difference between extinction and 

survival for many species. 

In considering exclusions of areas 

proposed for designation, we evaluated 

the benefits of designation in light of 

Gifford Pinchot Task Force v. United 

States Fish and Wildlife Service. In that 

case, the Ninth Circuit invalidated the 

Service’s regulation defining 

‘‘destruction or adverse modification of 

critical habitat.’’ In response, on 

December 9, 2004, the Director issued 

guidance to be considered in making 

section 7 adverse modification 

determinations. This proposed critical 

habitat designation does not use the 

invalidated regulation in our 

consideration of the benefits of 

including areas in this final designation. 

The Service will carefully manage 

future consultations that analyze 

impacts to designated critical habitat, 

particularly those that appear to be 

resulting in an adverse modification 

determination. Such consultations will 

be reviewed by the Regional Office prior 

to finalizing to ensure that an adequate 

analysis has been conducted that is 

informed by the Director’s guidance. 

On the other hand, to the extent that 

designation of critical habitat provides 

protection, that protection can come at 

significant social and economic cost. In 

addition, the mere administrative 

process of designation of critical habitat 

is expensive, time-consuming, and 

controversial. The current statutory 

framework of critical habitat, combined 

with past judicial interpretations of the 

statute, make critical habitat the subject 

of excessive litigation. As a result, 

critical habitat designations are driven 

by litigation and courts rather than 

biology, and made at a time and under 

a time frame that limits our ability to 

obtain and evaluate the scientific and 

other information required to make the 

designation most meaningful. 

In light of these circumstances, the 

Service believes that additional agency 

discretion would allow our focus to 

return to those actions that provide the 

greatest benefit to the species most in 

need of protection. 

Procedural and Resource Difficulties in 

Designating Critical Habitat 

We have been inundated with 

lawsuits for our failure to designate 

critical habitat, and we face a growing 

number of lawsuits challenging critical 

habitat determinations once they are 

made. These lawsuits have subjected the 

Service to an ever-increasing series of 

court orders and court-approved 

settlement agreements, compliance with 

which now consumes nearly the entire 

listing program budget. This leaves the 

Service with little ability to prioritize its 

activities to direct scarce listing 

resources to the listing program actions 

with the most biologically urgent 

species conservation needs. 

The consequence of the critical 

habitat litigation activity is that limited 

listing funds are used to defend active 

lawsuits, to respond to Notices of Intent 

(NOIs) to sue relative to critical habitat, 

and to comply with the growing number 

of adverse court orders. As a result, 

listing petition responses, the Service’s 

own proposals to list critically 

imperiled species, and final listing 

determinations on existing proposals are 

all significantly delayed. 

The accelerated schedules of courtordered designations have left the 

Service with limited ability to provide 

for public participation or to ensure a 

defect-free rulemaking process before 

making decisions on listing and critical 

habitat proposals, due to the risks 

associated with noncompliance with 

judicially imposed deadlines. This in 

turn fosters a second round of litigation 

in which those who fear adverse 

Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Proposed Rules 73701 

impacts from critical habitat 

designations challenge those 

designations. The cycle of litigation 

appears endless, and is very expensive, 

thus diverting resources from 

conservation actions that may provide 

relatively more benefit to imperiled 

species. 

The costs resulting from the 

designation include legal costs, the cost 

of preparation and publication of the 

designation, the analysis of the 

economic effects and the cost of 

requesting and responding to public 

comment, and in some cases the costs 

of compliance with the National 

Environmental Policy Act (NEPA). 

These costs, which are not required for 

many other conservation actions, 

directly reduce the funds available for 

direct and tangible conservation actions. 

Background 

It is our intent to discuss only those 

topics directly relevant to the 

designation of critical habitat in this 

proposed rule. For more information on 

the Laguna Mountains skipper, refer to 

the final rule listing the species as 

endangered, published in the Federal 

Register on January 16, 1997 (62 FR 

2313). 

Species Description 

The Laguna Mountains skipper is a 

member of the family Hesperiidae 

(skippers), and is one of two recognized 

subspecies of Pyrgus ruralis. Skippers 

are generally small bodied with a fast, 

erratic flight pattern. Adult Laguna 

Mountains skippers have a wingspan of 

approximately one inch (two and a half 

centimeters) (Garth and Tilden 1986; 

Osborne in litt. 2004) and are 

distinguished from other co-occurring 

skipper species by their checkered dark 

brown and white appearance (Osborne 

in. litt. 2004). The submarginal spots on 

the hind wing form a distinguishing ‘‘X’’

shape, and the dark bands on the 

marginal fringe of the hind wing extend 

prominently across the fringe (Levy 

1994). 

Adult females lay their eggs on the 

outer leaves of their hostplant (i.e., a 

plant on which the larvae feed and 

develop). In many species of butterfly, 

the hostplants are limited to one or two 

species. The main hostplant for the 

Laguna Mountains skipper is Horkelia 

clevelandii (Cleveland’s horkelia). Eggs 

of the Laguna Mountains skipper 

develop and hatch in approximately 12 

to14 days (Mattoni and Longcore 1998; 

Pratt 1999), with some variation likely 

due to habitat microsite conditions and 

local weather. Development from egg to 

pupa takes approximately 7 weeks. 

Habitat 

The Laguna Mountains skipper has 

specialized habitat requirements within 

a narrow geographic distribution. The 

Laguna Mountains skipper is known to 

occur in a matrix of pine and mixed 

conifer/oak forests, meadows, small 

forest openings, and forest edges that 

support larval host plants between 3,800 

and 6,000 feet (ft) (1,158 and 2,000 

meters (m)) in elevation (Emmel and 

Emmel 1973; Levy 1997; Mattoni and 

Longcore 1998; Pratt 1999; Osborne 

2002). 

Habitat has been primarily identified 

by the presence or abundance of the 

species’ main larval host plant, Horkelia 

clevelandii. However, habitat also 

consists of all resources, such as nectarproducing plants and surface moisture, 

or puddles, that provide feeding, 

breeding and sheltering for adult 

butterflies. One scientific study of 

Laguna Mountains skipper habitat has 

been conducted. Williams and Bailey 

(2004) investigated geographic variation 

in presumed habitat characteristics 

among geographic locations, and 

differences in habitat characteristics 

between sites with and without a known 

history of Laguna Mountains skipper 

observations. Research indicates that 

sites with a known history of Laguna 

Mountains skipper sightings had more 

bare ground, larger host plant patches, 

and larger, taller H. clevelandii plants 

than sites where Laguna Mountains 

skippers had not been seen. 

Until recently, Horkelia clevelandii 

was thought to be the only host plant 

species used by the Laguna Mountains 

skipper. However, the use of Potentila 

glandulosa as a host plant in the wild 

was first documented on Palomar 

Mountain by Pratt (1999). This was later 

confirmed in 2004 in Mendenhall 

Valley (Ken Osborne, pers. comm. 

2004). Both host plant species grow in 

clusters low to the ground and are 

relatively small, long-lived, non-woody 

(herbaceous) plants in the rose family 

(Rosacae). 

Status and Distribution 

When the Laguna Mountains skipper 

was listed in 1997, the species was 

known from Palomar and Laguna 

Mountains in San Diego County (62 FR 

2313). However, its primary host plant, 

Horkelia clevelandii, has a much wider 

distribution, extending from the San 

Jacinto, Palomar, Cuyamaca, and Laguna 

Mountains of southwestern California, 

south to Sierra San Pedro Martir, in 

Baja, California, Mexico (Keck 1938; 

Hickman 1993). Within the Laguna 

Mountains, the surrounding forests are 

dominated by Jeffery pine (Pinus jefferii) 

and black oak (Quercus kelloggii), while 

the Palomar Mountains are dominated 

by a mixed forest comprised of Jeffery 

pine, white fir (Abies concolor), incense 

cedar (Calocedrus decurrens), and black 

oak. 

During the 1950s and 1960s, Laguna 

Mountains skippers were commonly 

recorded from several locations on 

Laguna Mountain, including Big 

Laguna, Boiling Springs, East Laguna, 

Horse Haven Springs, Laguna Lake and 

Little Laguna Meadow (Levy 1994). 

Surveys conducted since 1994 have 

detected adult Laguna Mountains 

skippers only near Little Laguna 

Meadow, at the El Prado/Laguna 

Campground (Pratt 1999). Although 

historic records of the species in the 

Laguna Mountains with specific 

location descriptions are all in the 

vicinity of the greater Laguna Meadow, 

this is likely an artifact of access and 

where sites were known to collectors 

(Levy 1994). Other areas, such as Horse 

Meadow to the south, also contain 

features identified as essential for 

sustaining Laguna Mountains skipper 

populations (Levy 1994). 

The Laguna Mountains skipper was 

first recorded on Palomar Mountain in 

1947, at an unspecified location (San 

Diego Natural History Museum, in Levy 

1994). In 1991 Dan Lindsley collected 

two specimens in ‘‘the last small 

meadow before the Palomar 

Observatory’’ (Levy 1994). Since its 

discovery, the Laguna Mountains 

skipper has been recorded at several 

Palomar Mountain locations on Federal, 

State, and private lands, but only one 

site (Mendenhall Valley) exists where 

adults can be reliably found (Levy 1994, 

1996, 1997; Pratt 1999; Faulkner in litt. 

2000; Osborne 2002, 2003). New 

sightings in 2001 in the Pine Hills area 

(a location not known at the time of 

listing) provide the lowest elevation 

observation record of this species, 

recorded at 3,840 ft (1,170 m) (Osborne 

2002). 

The listing rule (62 FR 2313) stated 

that the Laguna Mountains skipper had 

been reported from four (unspecified) 

sites on Palomar Mountain. Upon 

evaluation of GIS data available at the 

time of listing, and other data available 

at time of listing (e.g., Levy 1994), we 

identified these sites as lower French 

Valley, Palomar Observatory 

Campground, Palomar Observatory 

Meadow, and Mendenhall Valley. The 

more recent Observatory Trail locations 

are in a meadow/woodland transition 

area at the southeastern end of Upper 

French Valley, and the campground 

location is between Mendenhall Valley 

and Upper French Valley. The 

campground and trail sites are small 

73702 Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Proposed Rules 

woodland openings that are unlikely to 

support an isolated population longterm. Mark-release-recapture studies of 

a related skipper species (the grizzled 

skipper, Pyrgus malvae) occupying 

similar habitat recorded adult 

movement among forest openings of 

more than 0.62 mi (1 km) (M. Brereton 

in Levy 1994). Therefore, small forest 

openings create landscape connectivity 

(habitat the species is capable of 

occupying and moving through) among 

larger meadows. The distributions of 

small occupied forest openings and 

meadows (meadow complexes) indicate 

historic occupancy of Laguna 

Mountains skipper populations 

throughout the northern Palomar 

Mountains meadow system, including 

unsurveyed portions of Upper French 

Valley. 

Based on the findings of the markrelease recapture study (M. Brereton in 

Levy 1994), grizzled skipper adults are 

sedentary most of the time, rarely 

moving further than 20 m, but do move 

distances greater than 1 km. This 

movement pattern and the distribution 

of observations among several small 

forest openings and meadows are 

characteristic of local alpine butterfly 

populations belonging to a greater 

metapopulation distribution (e.g., 

Boughton 1999). If the Laguna 

Mountains skipper populations are 

characterized by metapopulation 

dynamics, habitat patches within the 

population distribution not occupied at 

any given time are still required for 

population viability. 

No repeated, systematic population 

status studies of the Laguna Mountains 

skipper have been conducted. While 

individuals can regularly be found in 

the Mendenhall Valley on Palomar 

Mountain, the long-term viability of the 

species on Laguna Mountain is 

uncertain. Surveys suggest the species 

has declined in the Laguna Mountains, 

although very little is known regarding 

the species’ population status or 

dynamics throughout its range. The 

Laguna Mountains skipper has never 

been recorded outside of Laguna or 

Palomar Mountains; however, the 

species may have been more widespread 

historically throughout the higher 

elevations of San Diego County (Brown 

in litt. 1991). The species could 

potentially occupy the Cuyamaca 

Mountains north of Laguna Mountain 

and the San Jacinto Mountains in 

Riverside County, as these areas all 

contain meadows and host plants (Keck 

1938) at appropriate elevations, and are 

proximal to occupied mountains. 

However, few survey data exist for 

mountains where the Laguna Mountains 

skippers were not known to historically 

occur. 

Historically, Palomar Mountain 

populations were considered small 

compared to Laguna Mountain 

populations, with only 5 specimens 

reported prior to 1991 (Brown in litt. 

1991). Today, Palomar Mountain 

appears to sustain the largest known 

population of the Laguna Mountains 

skipper. The number of individuals 

occupying Mendenhall Valley has been 

estimated between approximately 240 

individuals in 1994 (Levy 1994) and 

approximately 1,470 individuals in 

1998 (Mattoni and Longcore 1998). Levy 

(1994) based his estimate on adult 

surveys and stated that his estimate of 

approximately 240 adult butterflies 

could be much higher than the actual 

number. Mattoni and Longcore (1998) 

based their estimate on the number of 

eggs and larvae found on host plants 

within a specific area. From this they 

extrapolated to an adult population 

estimate based on the abundance of host 

plants, average fecundity, and equal sex 

ratios. These estimates differ 

significantly, at least in part due to 

differences in methodology. 

Populations in the Laguna Mountains 

appear to be small, and possibly 

bordering on extirpation. Surveys of 

varying intensity and duration were 

conducted in 8 of the 10 years between 

1994 and 2003. During this 10-year 

period, only 4 adult skippers were 

found: a single individual in 1995 (Levy 

1997), 1 adult in 1996 (Levy 1997), and 

2 adults in 1999 (Pratt 1999). All 

observations of adult skippers have been 

at the El Prado/Laguna Campground. A 

single skipper larval shelter was found 

in 1997 at the Meadow Kiosk along the 

Sunrise Highway (Pratt 1999), 

documenting a new location of 

occupied habitat. However, no adults 

were observed at this location. Adult 

skippers have not been documented in 

the Laguna Mountains since 1999. 

Previous Federal Actions 

For information on previous Federal 

actions for the Laguna Mountains 

skipper, refer to the final rule listing for 

this species and the Quino Checkerspot 

Butterfly (Euphydryas editha quino) as 

endangered (62 FR 2313). At the time of 

listing, the Service determined that 

critical habitat was not prudent, citing 

that the publication of precise maps and 

descriptions of critical habitat could 

result in additional habitat destruction 

through trampling, discing, and grading 

as well as collection (62 FR 2313). On 

January 10, 2003, the Center for 

Biological Diversity (Center) filed a 

lawsuit against the Service for violations 

under the Act and the Administrative 

Procedure Act (5 U.S.C. Subchapter II) 

for the Service’s failure to designate 

critical habitat for the species (CBD v. 

USFWS Civ. No. 03–0058–BTM (NLS)). 

In a stipulated settlement agreement 

dated July 29, 2003, the Service agreed 

to reconsider its ‘‘not prudent’’ finding 

and propose critical habitat, if prudent, 

on or before November 30, 2005, and to 

publish a final critical habitat rule, if 

prudent, on or before November 30, 

2006. This proposed rule complies with 

the settlement agreement. We have 

reconsidered our not prudent finding, 

and now believe that identification of 

primary constituent elements and 

essential areas (critical habitat 

designation) may provide educational 

information to individuals, local and 

State governments, and other entities. 

Because this species is so limited in 

geographic range, most landowners and 

collectors have been aware of its 

presence since listing. Unlike the Quino 

checkerspot butterfly listed in the same 

rule, collectors have always known 

where to find the Laguna Mountains 

skipper, however, access to the best site 

is restricted because it can only be 

reached through private land 

(Mendenhall Valley). 

Critical Habitat 

Critical habitat is defined in section 3 

of the Act as—(i) the specific areas 

within the geographical area occupied 

by a species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features (I) essential to the conservation 

of the species and (II) that may require 

special management considerations or 

protection; and (ii) specific areas 

outside the geographical area occupied 

by a species at the time it is listed, upon 

a determination that such areas are 

essential for the conservation of the 

species. Conservation, as defined under 

section 3 of the Act means to use and 

the use of all methods and procedures 

which are necessary to bring any 

endangered species or threatened 

species to the point at which the 

measures provided pursuant to the Act 

are no longer necessary. Such methods 

and procedures include, but are not 

limited to, all activities associated with 

scientific resources management such as 

research, census, law enforcement, 

habitat acquisition and maintenance, 

propagation, live trapping, and 

transplantation, and, in the 

extraordinary case where population 

pressures within a given ecosystem 

cannot be otherwise relieved, may 

include regulated taking. 

Critical habitat receives protection 

under section 7 of the Act through the 

prohibition against destruction or 

Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Proposed Rules 73703 

adverse modification of critical habitat 

with regard to actions carried out, 

funded, or authorized by a Federal 

agency. Section 7 requires consultation 

on Federal actions that are likely to 

result in the destruction or adverse 

modification of critical habitat. The 

designation of critical habitat does not 

affect land ownership or establish a 

refuge, wilderness, reserve, preserve, or 

other conservation area. Such 

designation does not allow government 

or public access to private lands. 

Section 7 is a purely protective measure 

and does not require implementation of 

restoration, recovery, or enhancement 

measures. 

To be included in a critical habitat 

designation, the habitat within the area 

occupied by the species must first have 

features that are essential to the 

conservation of the species. Critical 

habitat designations identify, to the 

extent known using the best scientific 

data available, habitat areas that provide 

essential life cycle needs of the species 

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

primary constituent elements, as 

defined at 50 CFR 424.12(b)). 

Habitat occupied at the time of listing 

may be included in critical habitat when 

the essential features thereon may 

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).) In addition, when the 

best available scientific data do not 

demonstrate that the conservation needs 

of the species so require, we will not 

designate critical habitat in areas 

outside the geographical area occupied 

by the species at the time of listing. 

However, an area currently occupied by 

the species that was not known to be 

occupied at the time of listing will 

likely, but not always, be essential to the 

conservation of the species and, may 

therefore, be included in the critical 

habitat designation. 

The Service’s Policy on Information 

Standards Under the Endangered 

Species Act, published in the Federal 

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

and Section 515 of the Treasury and 

General Government Appropriations 

Act for Fiscal Year 2001 (Pub. L. 106–

554; H.R. 5658) and the associated 

Information Quality Guidelines issued 

by the Service, provide criteria, 

establish procedures, and provide 

guidance to ensure that decisions made 

by the Service represent the best 

scientific data available. They require 

Service biologists to the extent 

consistent with the Act and with the use 

of the best scientific data available, to 

use primary and original sources of 

information as the basis for 

recommendations to designate critical 

habitat. When determining which areas 

are critical habitat, a primary source of 

information is generally the listing 

package for the species. Additional 

information sources include the 

recovery plan for the species, articles in 

peer-reviewed journals, conservation 

plans developed by States and counties, 

scientific status surveys and studies, 

biological assessments, or other 

unpublished materials and expert 

opinion or personal knowledge. All 

information is used in accordance with 

the provisions of Section 515 of the 

Treasury and General Government 

Appropriations Act for Fiscal Year 2001 

(Pub. L. 106–554; H.R. 5658) and the 

associated Information Quality 

Guidelines issued by the Service. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific data available. Habitat 

is often dynamic, and species may move 

from one area to another over time. 

Furthermore, we recognize that 

designation of critical habitat may not 

include all of the habitat areas that may 

eventually be determined to be 

necessary for the recovery of the 

species. For these reasons, critical 

habitat designations do not signal that 

habitat outside the designation is 

unimportant or may not be required for 

recovery. 

Areas that support 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)(2) the Act 

we use the best scientific data available 

in determining areas that contain 

features that are essential to the 

conservation of the Laguna Mountains 

skipper. These include data from field 

surveys for Horkelia clevelandii, 

regional Geographic Information System 

(GIS) vegetation and species coverages, 

data compiled in the California Natural 

Diversity Database (CNDDB), and survey 

data for the Laguna Mountains skipper 

from reports submitted by biologists 

holding section 10(a)(1)(A) recovery 

permits. Based on the assessment of 

those physical and biological 

components identified above, the 

known and historic occurrences of 

Laguna Mountains skipper, and 

available information on the 

distribution of H. clevelandii, we 

identified proposed 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 

and commercial 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 or protection. These 

include, but are not limited to: Space for 

individual and population growth and 

for normal behavior; food, water, air, 

light, minerals, or other nutritional or 

physiological requirements; cover or 

shelter; sites for breeding, reproduction, 

and rearing (or development) of 

offspring; and habitats that are protected 

from disturbance or are representative of 

the historic geographical and ecological 

distributions of a species. 

The specific primary constituent 

elements required for the Laguna 

Mountains skipper are derived from the 

biological needs of the species as 

described in the Background section of 

this proposal and the final listing rule. 

Food, Water, or other Nutritional or 

Physiological Requirements 

Laguna Mountain skippers require 

sunlight provided in the open meadows, 

open woodlands, or other forest 

openings. Butterflies are exothermic 

and, like most insects, body temperature 

is of overriding importance in limiting 

flight (Chapman 1982). Butterfly flight 

activity is limited by light intensity. 

Therefore, they require areas for basking 

in the sun in order to raise their body 

temperature for flight (Chapman 1982). 

Additionally, surface moisture such as 

puddles and seeps (not flowing water) 

provide water and minerals for adults. 

Adult Laguna Mountains skippers need 

annual or perennial nectar sources 

including meadow and woodlandassociated herbaceous annual 

wildflowers, and perennial herbs (e.g. 

73704 Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Proposed Rules 

Lasthenia spp. (goldfields), Pentachaeta 

aurea (golden-rayed pentachaeta), 

Ranunculus spp. (buttercups), and 

Sidalcea spp. (checkerbloom)). 

Sites for Breeding and Reproduction 

The Laguna Mountains skippers 

requires Horkelia clevelandii host plants 

to lay eggs on and for the caterpillars to 

eat and construct pupal shelters, and 

may also require Potentila glandulosa. 

Host plant patches must be dense 

enough to support breeding (provide 

multiple and diverse sites for depositing 

eggs), although the exact host-plant 

patch size and density required for 

breeding is not known. A ‘‘patch’’ of 

host plants may consist of one to several 

clumps of H. clevelandii or P. 

glandulosa growing together, as well as 

numerous individual plants that are 

growing in close proximity. 

Space for Individual and Population 

Growth, and for Normal Behavior 

Because the current geographic range 

is fragmented and small, population 

densities are relatively low, and the 

quality of most breeding habitat has 

been compromised to some degree by 

grazing, recreation impacts, or exotic 

plant invasion, all landscape 

connectivity areas among occupied 

meadows and forest openings that adult 

Laguna Mountains skippers can move 

through are required for survival of the 

species. In order to facilitate the use of 

connectivity areas for adult movement 

between breeding sites, it is important 

to maintain populations of hostplants 

and adult nectar sources, even if they 

are not likely to be used for breeding. 

Historic and Geographic Distribution of 

the Species 

The occupied areas proposed for 

designation are representative of the 

historic and geographical distribution of 

the species. Areas proposed for 

designation that are not known to be 

occupied were all historically occupied 

and will restore a portion of the historic 

geographic distribution of Laguna 

Mountains skipper. Connectivity is 

required for recolonization of habitat to 

occur (e.g., after extirpation by fire) and 

for genetic diversity to be maintained. 

Primary Constituent Elements for the 

Laguna Mountains skipper 

The specific primary constituent 

elements required for the Laguna 

Mountains skipper are derived from the 

biological needs as described in the 

Background section of this proposal. 

These include all areas within Palomar 

and Laguna Mountains that sustain the 

main host plant of the Laguna 

Mountains skipper, Horkelia 

clevelandii, and associated habitat 

containing Potenetila gandulosa, 

including movement areas between 

meadows and forest openings. The 

specific biological and physical habitat 

features identified as essential for 

sustaining Laguna Mountains skipper 

populations are: 

1. The host plants, Horkelia 

clevelandii or Potentila glandulosa, in 

meadows or forest openings needed for 

reproduction. 

2. Nectar sources suitable for feeding 

by adult Laguna Mountains skipper, 

including Lasthenia spp., Pentachaeta 

aurea, Ranunculus spp., and Sidalcea 

spp. found in woodlands or meadows. 

3. Wet soil or standing water 

associated with features such as seeps, 

springs, or creeks where water and 

minerals are obtained during the adult 

flight season. 

This proposed designation is designed 

for the conservation of PCEs necessary 

to support the life history functions 

which were the basis for the proposal. 

Because not all life history functions 

require all the PCEs, not all proposed 

critical habitat will contain all the PCEs. 

Each of the areas proposed in this rule 

have been determined to contain 

sufficient PCEs to provide for one or 

more of the life history functions of the 

Laguna Mountains skipper. In some 

cases, the PCEs exist as a result of 

ongoing Federal actions. As a result, 

ongoing Federal actions at the time of 

designation will be included in the 

baseline in any consultation conducted 

subsequent to this designation. 

Criteria Used To Identify Critical 

Habitat 

To delineate proposed critical habitat, 

we identified meadow complexes 

(meadows and forest openings 

connected by open forest canopy) on 

Palomar and Laguna Mountains known 

to be occupied by the Laguna Mountains 

skipper at the time of listing and known 

to be currently occupied. The species is 

currently known to occupy only one 

meadow complex (Laguna Meadow) on 

Laguna Mountain, but we also identified 

two other meadow complexes on 

Laguna Mountain that contain habitat 

with features essential to the 

conservation of the species. These 

meadow complexes have not been 

extensively surveyed and are not 

currently known to be occupied. 

However, Laguna Mountain as a whole 

was known to be historically occupied 

by the skipper. These areas are 

important for expansion and 

enhancement of populations in Laguna 

Meadow and are therefore considered 

essential to the conservation of the 

species. 

Using infrared satellite imagery, we 

delineated the proposed critical habitat 

boundaries by outlining identified 

meadow complexes. In delineating 

proposed critical habitat boundaries, we 

included areas within meadow 

complexes containing relatively dense 

Horkelia clevelandii observations. 

Finally, maps were produced by fitting 

a 100 meter grid outline to the initial 

hand-drawn outlines. 

When determining proposed critical 

habitat boundaries, we made every 

effort to avoid including within the 

boundaries of the map contained within 

this proposed rule developed areas such 

as buildings, paved areas, and other 

structures that lack PCEs for the Laguna 

Mountains skipper. The scale of the 

maps prepared under the parameters for 

publication within the Code of Federal 

Regulations may not reflect the 

exclusion of such developed areas. Any 

such structures and the land under them 

inadvertently left inside critical habitat 

boundaries shown on the maps of this 

proposed rule have been excluded by 

text in the proposed rule and are not 

proposed for designation as critical 

habitat. Therefore, Federal actions 

limited to these areas would not trigger 

section 7 consultation, unless they affect 

the species and/or primary constituent 

elements in adjacent critical habitat. 

We are proposing to designate critical 

habitat on lands that we have 

determined were occupied at the time of 

listing and contain sufficient primary 

constituent elements to support life 

history functions essential for the 

conservation of the species. We are also 

proposing subunits that were not known 

to be occupied at the time of listing but 

have been determined to be essential for 

the conservation of the Laguna 

Mountains skipper. Occupied subunits 

were designated based on sufficient 

PCEs being present to support Laguna 

Mountains skipper life processes. All 

subunits contain all of the PCEs and 

support multiple life processes. 

At this time, based on the best 

available information, we have 

determined that without management 

and protection for the habitat of the 

Laguna Mountains skipper in the areas 

not known to be occupied at the time of 

listing or known to be currently 

occupied, conservation of the species 

will not be possible in the foreseeable 

future, and these areas are accordingly 

essential to the conservation of the 

species. 

Special Management Considerations or 

Protections 

As we undertake the process of 

designating critical habitat for a species, 

we first evaluate lands defined by those 

Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Proposed Rules 73705 

physical and biological features 

essential to the conservation of the 

species pursuant to section 3(5)(A) of 

the Act. Secondly, we evaluate lands 

defined by those features to assess 

whether they may require special 

management considerations or 

protection. Threats to those essential 

features that define critical habitat 

(primary constituent elements) for the 

Laguna Mountains skipper include the 

direct and indirect impacts of human 

development and recreation, surface 

and groundwater management practices, 

and grazing intensity. 

Areas proposed as critical habitat are 

composed of 36 percent private land 

holdings, where habitat is subject to 

rural development and other land use 

changes, overgrazing, potential stream 

and groundwater diversions, and 

recreational activities. State and Federal 

landholdings (6 and 36 percent, 

respectively) are also subject to grazing 

and recreational activities. While 

designation of critical habitat does not 

impose any management requirements, 

particularly on State or private land, the 

following are measures that could be 

undertaken to benefit the species. 

Grazing can cause direct mortality of 

larvae and eggs by trampling and 

consumption. The density of cattle 

grazed in meadow habitat should be 

monitored and regulated, as well as 

levels of habitat degradation resulting 

from existing grazing. Adaptive 

management may be needed to adjust 

cattle grazing intensity, and protection 

measures may include exclosures to 

prevent grazing. Monitoring of potential 

changes in hydrology caused by stream 

and groundwater diversions should be 

undertaken as well as any necessary 

management to prevent habitat 

conversion. 

On Palomar Mountain, commercial 

drinking water projects and private 

stream alterations are currently 

diverting stream and groundwater to an 

unknown extent. Drying of meadows 

results in vegetation changes (for a 

general discussion see Naumburg et al. 

2005) that could eliminate primary 

constituent elements within Laguna 

Mountains skipper habitat (e.g. host 

plants and surface moisture, PCEs 1 and 

3). Recreational activities such as 

camping and horseback riding increase 

encroachment of exotic vegetation and 

can cause direct mortality of Laguna 

Mountains skipper larvae by trampling 

(Pratt 1999). Alteration of host plant 

distribution and availability, plant 

canopy closure, and availability of 

resources such as nectar and moisture 

(all PCEs) can result from disturbance 

by cattle and humans, and habitat 

conversion due to changes in surface 

and groundwater availability. 

Pursuant to a consultation with the 

Service under section 7 of the Act, the 

Cleveland National Forest has 

implemented some measures on their 

land to minimize impacts to the Laguna 

Mountains skipper. However, no 

management plan exists that addresses 

conservation of this species in the 

Cleveland National Forest. Therefore, 

special management may be needed to 

minimize impacts to the skipper 

resulting from recreation and exotic 

plant invasion. 

We believe areas proposed for 

designation as critical habitat contain 

physical and biological features 

essential for the conservation of the 

Laguna Mountains skipper, and may 

require some level of management and/ 

or protection to address current and 

future threats to the Laguna Mountains 

skipper. Subunits 2A, 2B, and 2C may 

require special management due to all 

threats described above. All subunits in 

Unit 1 may require special management 

due to all threats described above except 

diverting stream and groundwater. 

Subunit 2D may require primarily 

management of recreation impacts. 

Economic or fire management activities, 

such as logging, fuel modification, and 

relatively low density grazing, should 

not adversely modify habitat if carefully 

managed to minimize or avoid 

destruction of host plants. 

Proposed Critical Habitat Designation 

We are proposing 2 units made up of 

7 subunits, totaling 6,662 ac (2,696 ha) 

as critical habitat for the Laguna 

Mountains skipper. The critical habitat 

areas described below constitute our 

best assessment at this time of areas 

determined to be occupied at the time 

of listing, contain the primary 

constituent elements and may require 

special management, and those 

additional areas that were not known to 

be occupied at the time of listing but 

found to be essential to conservation of 

the Laguna Mountains skipper. 

Proposed critical habitat areas 

encompass approximately 3,887 ac 

(1,574 ha; 58 percent) of Federal land 

ownership, 381 ac (154 ha; 6 percent) of 

State land ownership, and 2,394 ac (968 

ha; 36 percent) of private land 

ownership. No Tribal lands were 

included in this proposed designation. 

The 2 units proposed as critical 

habitat are: (1) Palomar Mountain; and, 

(2) Laguna Mountain. Brief descriptions 

of the units are presented below. Four 

subunits (1A, 2A, 2B, 2D) were known 

to be occupied at the time of listing, one 

subunit was not known to be occupied 

at the time of listing but is known to be 

currently occupied (2C), and two 

subunits (1B and 1C) were not known to 

be occupied at the time of listing and 

are not known to be currently occupied, 

but are connected to occupied habitat, 

were historically occupied, and contain 

physical and biological features 

essential to the conservation of the 

species and are themselves essential to 

the conservation of the species. 

All subunits not currently known to 

be occupied are contiguous with 

occupied subunits and ensure 

representation of the historic 

geographical distribution not otherwise 

represented by the occupied subunits. 

There is potential for current occupancy 

in subunits not currently known to be 

occupied, as survey efforts in these 

areas have been limited. No conclusive 

evidence is available to indicate 

complete absence of Laguna Mountains 

skipper at any of these sites; few, 

incomplete, or no recent surveys have 

been conducted at sites not currently 

known to be occupied. Species 

detectability is generally low (e.g. Pratt 

1999), particularly if the population 

occurs in low numbers. Surveys may 

have missed sightings, as shown by 

repeated collections near Little Laguna 

Lake where historically there were 

many observations, followed by 

repeated reports of no occurrences, with 

subsequent population ‘‘re-discovery’’

(Pratt 1999). The current, overall 

population size of the Laguna 

Mountains skipper is at such a low level 

that it was thought to have possibly 

been extirpated in the Laguna 

Mountains at the time of listing (Levy 

1994; 62 FR 2313). 

While occupied subunits provide 

some habitat for current populations, 

unoccupied subunits would provide 

habitat for population augmentation 

either through natural means, or by reintroduction. (Note: We believe that 

given the species’ small population size 

and very limited range, reintroduction 

may be necessary for long-term 

persistence of the species. We are not 

currently developing a reintroduction 

plan. However, we’ve identified the 

potential need for a propagation and 

reintroduction program as a recovery 

task in the draft recovery plan citing 

that such a program may be necessary 

for recovery of the species, especially in 

the Laguna Mountains where the 

species has been documented to occur 

in one meadow area. We do not 

anticipate that section 10(j) would apply 

to any reintroduction (or augmentation) 

of Laguna Mountains skipper on either 

the Palomar or Laguna Mountains since 

they would not be separated 

geographically from the existing 

populations.) As stated in the final rule 

73706 Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Proposed Rules 

listing the species as endangered (62 FR 

2313), one of several naturally occurring 

events could extirpate the existing 

population due to its very restricted 

range and extremely localized 

distribution. The inclusion of 

unoccupied subunits in critical habitat 

would reduce the threat that 

catastrophic naturally occurring events 

such as the Cedar Fire that burned part 

of Laguna Mountain in 2003 (e.g., 

IBAERT 2003) would extirpate the 

population by providing additional 

available habitat that the species could 

expand into. Therefore, we have 

determined that expansion of the 

species into habitat not currently known 

to be occupied and connectivity with 

existing occupied habitat is necessary to 

conserve the species. Based on the best 

available information, we have 

determined that management and 

protection for the Laguna Mountains 

skipper in areas historically occupied 

and known to be currently occupied on 

Laguna Mountain is necessary. 

Unit Descriptions 

Unit 1: Laguna Mountain 

Unit 1 encompasses approximately 

3,763 ac (1,523 ha), and is 

approximately centered on Laguna 

Mountain peak located in south-central 

San Diego County east of the 

community of Alpine. This unit is 

divided into three subunits containing 

all the primary constituent elements. 

This unit is crucial to the species the 

species primarily because the species 

was first described from this unit and 

represents the southernmost portion of 

the species range. Maintaining two 

widely separate units (i.e., Laguna and 

Palomar Mountains) and multiple 

subunits limits the potential for a 

catastrophic event from extirpating all 

remaining populations. Because the 

number of known occupied sites and 

low population densities are not 

sufficient to overcome the threat of 

extirpation, connectivity and expansion 

into unoccupied meadow complexes is 

necessary for the conservation of the 

Laguna Mountains skipper. 

Connectivity is important for 

recolonization of habitat to occur (e.g. 

after extirpation by fire) and genetic 

diversity to be maintained among local 

populations. 

Unit 1A: Laguna Meadow 

Unit 1A (2,829 ac (1,145 ha)) is 

currently occupied and was known to 

be occupied at the time of listing. This 

subunit contains habitat features 

essential to the conservation of the 

species and is the site where the species 

was first described (i.e., northern 

Laguna Meadow, near Little Laguna 

Lake), and is where adults could be 

reliably found historically. The 

Cleveland National Forest lands in this 

unit is subject to grazing and 

recreational activities and may require 

special management such as grazing 

density adjustments or additional 

exclosures to protect host plants. This 

subunit contains 2,724 (1,102 ha) of 

Federal land (i.e., U.S. Forest Service) 

and 105 ac (43 ha) of privately owned 

land. 

Unit 1B: Filaree Flat 

Subunit 1B (388 ac (157 ha)) is not 

currently known to be occupied, and 

was not known to be occupied at the 

time of listing, but was historically 

occupied. This subunit is essential 

because it (1) contains habitat features 

essential to the conservation of 

populations known to occupy Subunit 

1A, (2) provides for population 

expansion and enhancement, (3) 

minimizes habitat fragmentation, and 

(4) is representative of the historic 

geographical and ecological distribution 

of the species. Lands in this subunit are 

subject to grazing and recreational 

activities and may require special 

management such as grazing density 

adjustments or additional exclosures to 

protect host plants. This subunit 

contains 368 ac (149 ha) of Federal land 

(i.e., U.S. Forest Service) and 20 ac (8 

ha) of privately owned land. 

Unit 1C: Agua Dulce Campground and 

Horse Meadow 

Subunit 1C (546 ac (221 ha)) is not 

currently known to be occupied and 

was not known to be occupied at the 

time of listing. This subunit is essential 

because it (1) contains habitat features 

essential to the conservation of 

populations known to occupy Subunit 

1A; (2) provides for population 

expansion and enhancement; (3) 

minimizes habitat fragmentation; and, 

(4) is representative of the historic 

geographical and ecological distribution 

of the species. Habitat in this subunit is 

subject to grazing and recreational 

activities and may require special 

management such as grazing density 

adjustments or additional exclosures to 

protect host plants. This subunit 

contains 417 ac (169 ha) of Federal land 

(i.e., U.S. Forest Service) and 129 ac (52 

ha) of privately owned land. 

Unit 2: Palomar Mountain 

Unit 2 encompasses approximately 

2,899 ac (1,173 ha), and is 

approximately centered on Palomar 

Mountain peak located in north-central 

San Diego County near the border of 

Riverside County. Unit 2 consists of 

subunits containing all the primary 

constituent elements. Unit 2 includes 

the most densely populated area in the 

species’ range and encompasses the 

northernmost portion of the range. 

Maintaining two widely separate units 

(i.e., Laguna and Palomar Mountains) 

and multiple subunits limits the 

potential for a catastrophic event from 

extirpating all remaining populations. 

Unit 2A: Mendenhall Valley and 

Observatory Campground 

Subunit 2A (1,092 ac (442 ha)) is 

known to be currently occupied and 

was occupied at the time of listing. 

Subunit 2A supports the largest known 

population of Laguna Mountains 

skipper and represents the best 

opportunity for the survival of this 

species. This unit is composed of a large 

amount of private land holdings with 

habitat potentially subject to future rural 

development and other land use 

changes, overgrazing, stream diversion, 

and private recreational use. This 

subunit is the only meadow complex 

(i.e., Mendenhall Valley and associated 

forest openings) where multiple adults 

have been consistently detected since 

the time of listing. Subunit 2A (1) 

contains habitat features essential for 

conservation of the species; (2) 

conserves at least part of the only 

relatively stable, highest density local 

population; and (3) minimizes habitat 

fragmentation. This area may require 

special management such as host plant 

distribution monitoring, exclosure 

maintenance, and grazing density 

adjustments. This subunit contains 231 

(94 ha) of Federal land (i.e., U.S. Forest 

Service) and 861 (348 ha) of privately 

owned land. 

Unit 2B: Upper French Valley, 

Observatory Trail, and Palomar 

Observatory Meadows 

Subunit 2B (998 ac (404 ha)) is known 

to be currently occupied and was 

occupied at the time of listing. The 

distribution of small forest openings and 

meadows and the five observation 

locations along the Observatory Trail 

indicate historic occupancy of Laguna 

Mountains skipper populations in 

unsurveyed portions of Upper French 

Valley. Subunit 2B: (1) Contains habitat 

features essential for conservation of the 

species; (2) provides for population 

expansion and enhancement; and, (3) 

minimizes habitat fragmentation. This 

area may require special management 

such as host plant distribution 

monitoring, grazing and recreation 

exclosure maintenance, and grazing 

density adjustments. This subunit 

contains 93 (38 ha) of Federal land (i.e., 

Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Proposed Rules 73707 

U.S. Forest Service) and 905 ac (366 ha) 

of privately owned land. 

Unit 2C: Upper Doane Valley and Girl 

Scout Camp 

Subunit 2C (547 ac (221 ha)) is known 

to be currently occupied, but was not 

known to be occupied at the time of 

listing. Subunit 2C is also essential to 

the conservation of this species because 

it (1) contains habitat features essential 

to the conservation of populations 

known to occupy Subunit 2A, (2) allows 

population expansion and 

enhancement, and (3) minimizes habitat 

fragmentation. This area may require 

special management such as host plant 

distribution monitoring, exclosure 

maintenance, and grazing density 

adjustments. This subunit contains 40 

(16 ha) of Federal land (i.e., U.S. Forest 

Service), 316 ac (128 ha) of privately 

owned land, and 191 ac (77 ha) of State 

owned land (i.e. California State Parks). 

Unit 2D: Lower French Valley and Lower 

Doane Valley 

Subunit 2D (547 ac (221 ha)) is known 

to be currently occupied and was 

occupied at the time of listing. Subunit 

2C (1) contains habitat features essential 

to the conservation of populations 

known to occupy Subunit 2A, (2) allows 

population expansion and 

enhancement, and (3) minimizes habitat 

fragmentation. This area may require 

special management such as hostplant 

distribution monitoring, exclosure 

maintenance, and grazing density 

adjustments. This subunit contains 14 (6 

ha) of Federal land (i.e., U.S. Forest 

Service), 58 ac (23 ha) of privately 

owned land, and 190 ac (77 ha) of State 

owned land (i.e. California State Parks). 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7 of the Act requires Federal 

agencies, including the Service, to 

ensure that actions they fund, authorize, 

or carry out are not likely to destroy or 

adversely modify critical habitat. In our 

regulations at 50 CFR 402.02, we define 

destruction or adverse modification as 

‘‘a direct or indirect alteration that 

appreciably diminishes the value of 

critical habitat for both the survival and 

recovery of a listed species. Such 

alterations include, but are not limited 

to, alterations adversely modifying any 

of those physical or biological features 

that were the basis for determining the 

habitat to be critical.’’ However, recent 

decisions by the 5th and 9th Circuit 

Court of Appeals have invalidated this 

definition. Pursuant to current national 

policy and the statutory provisions of 

the Act, destruction or adverse 

modification is determined on the basis 

of whether, with implementation of the 

proposed Federal action, the affected 

critical habitat would remain functional 

(or retain the current ability for the 

primary constituent elements to be 

functionally established) to serve the 

intended conservation role for the 

species. 

Section 7(a) of the Act requires 

Federal agencies, including the Service, 

to evaluate their actions with respect to 

any species that is proposed or listed as 

endangered or threatened and with 

respect to its critical habitat, if any is 

proposed or designated. Regulations 

implementing this interagency 

cooperation provision of the Act are 

codified at 50 CFR part 402. 

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

Federal agencies to confer with us on 

any action that is likely to jeopardize 

the continued existence of a proposed 

species or result in destruction or 

adverse modification of proposed 

critical habitat. This is a procedural 

requirement only. However, once 

proposed species becomes listed, or 

proposed critical habitat is designated 

as final, the full prohibitions of section 

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

primary utility of the conference 

procedures is to maximize the 

opportunity for a Federal agency to 

adequately consider proposed species 

and critical habitat and avoid potential 

delays in implementing their proposed 

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

compliance process, should those 

species be listed or the critical habitat 

designated. 

Under conference procedures, the 

Service may provide advisory 

conservation recommendations to assist 

the agency in eliminating conflicts that 

may be caused by the proposed action. 

The Service may conduct either 

informal or formal conferences. Informal 

conferences are typically used if the 

proposed action is not likely to have any 

adverse effects to the proposed species 

or proposed critical habitat. Formal 

conferences are typically used when the 

Federal agency or the Service believes 

the proposed action is likely to cause 

adverse effects to proposed species or 

critical habitat, inclusive of those that 

may cause jeopardy or adverse 

modification. 

The results of an informal conference 

are typically transmitted in a conference 

report; while the results of a formal 

conference are typically transmitted in a 

conference opinion. Conference 

opinions on proposed critical habitat are 

typically prepared according to 50 CFR 

402.14, as if the proposed critical 

habitat were designated. We may adopt 

the conference opinion as the biological 

opinion when the critical habitat is 

designated, if no substantial new 

information or changes in the action 

alter the content of the opinion (see 50 

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

conservation recommendations in a 

conference report or opinion are strictly 

advisory. 

If a species is listed or critical habitat 

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

requires Federal agencies to ensure that 

activities they authorize, fund, or carry 

out are not likely to jeopardize the 

continued existence of such a species or 

to destroy or adversely modify its 

critical habitat. If a Federal action may 

affect a listed species or its critical 

habitat, the responsible Federal agency 

(action agency) must enter into 

consultation with us. As a result of this 

consultation, compliance with the 

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

documented through the Service’s 

issuance of: (1) A concurrence letter for 

Federal actions that may affect, but are 

not likely to adversely affect, listed 

species or critical habitat; or (2) a 

biological opinion for Federal actions 

that may affect, but are likely to 

adversely affect, listed species or critical 

habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

result in jeopardy to a listed species or 

the destruction or adverse modification 

of critical habitat, we also provide 

reasonable and prudent alternatives to 

the project, if any are identifiable. 

‘‘Reasonable and prudent alternatives’’

are defined at 50 CFR 402.02 as 

alternative actions identified during 

consultation that can be implemented in 

a manner consistent with the intended 

purpose of the action, that are consistent 

with the scope of the Federal agency’s 

legal authority and jurisdiction, that are 

economically and technologically 

feasible, and that the Director believes 

would avoid jeopardy to the listed 

species or destruction or adverse 

modification of critical habitat. 

Reasonable and prudent alternatives can 

vary from slight project modifications to 

extensive redesign or relocation of the 

project. Costs associated with 

implementing a reasonable and prudent 

alternative are similarly variable. 

Federal activities that may affect the 

Laguna Mountain skipper or their 

designated 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 

73708 Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Proposed Rules 

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. 

Application of the Jeopardy and 

Adverse Modification Standards for 

Actions Involving Effects to the Laguna 

Mountains Skipper and Its Critical 

Habitat 

Jeopardy Standard 

Prior to and following designation of 

critical habitat, the Service has applied 

an analytical framework for Laguna 

Mountains skipper jeopardy analyses 

that relies heavily on the importance of 

core area populations to the survival 

and recovery of the Laguna Mountains 

skipper. The section 7(a)(2) analysis is 

focused not only on these populations 

but also on the habitat conditions 

necessary to support them. 

The jeopardy analysis usually 

expresses the survival and recovery 

needs of the Laguna Mountains skipper 

in a qualitative fashion without making 

distinctions between what is necessary 

for survival and what is necessary for 

recovery. Generally, if a proposed 

Federal action is incompatible with the 

viability of the affected core area 

population(s), inclusive of associated 

habitat conditions, a jeopardy finding is 

considered to be warranted, because of 

the relationship of each core area 

population to the survival and recovery 

of the species as a whole. 

Adverse Modification Standard 

The analytical framework described 

in the Director’s December 9, 2004, 

memorandum is used to complete 

section 7(a)(2) analyses for Federal 

actions affecting Laguna Mountains 

skipper critical habitat. The key factor 

related to the adverse modification 

determination is whether, with 

implementation of the proposed Federal 

action, the affected critical habitat 

would remain functional (or retain the 

current ability for the primary 

constituent elements to be functionally 

established) to serve the intended 

conservation role for the species. 

Generally, the conservation role of 

Laguna Mountains skipper critical 

habitat units is to support viable core 

area populations. 

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

to briefly evaluate and describe in any 

proposed or final regulation that 

designates critical habitat those 

activities involving a Federal action that 

may destroy or adversely modify such 

habitat, or that may be affected by such 

designation. Activities that may destroy 

or adversely modify critical habitat may 

also jeopardize the continued existence 

of the species. 

Activities that may destroy or 

adversely modify critical habitat are 

those that alter the PCEs to an extent 

that the conservation value of critical 

habitat for the Laguna Mountains 

skipper is appreciably reduced. 

Activities that, when carried out, 

funded, or authorized by a Federal 

agency, may affect critical habitat and 

therefore result in consultation for the 

Laguna Mountains skipper include, but 

are not limited to: 

(1) Actions that destroy Laguna 

Mountains skipper host plants and 

immature life stages of the species. Such 

activities could include, but are not 

limited to overgrazing by livestock, 

logging, and recreational activities. 

These activities could eliminate 

breeding and nectaring resources for the 

adults, and directly destroy eggs, pupae, 

or larvae. 

(2) Actions that would long-term or 

permanently destroy habitat containing 

primary constituent elements. Such 

activities could include, but are not 

limited to, removal or destruction of 

host plants and nectar sources by paving 

or piling logs; erection of permanent 

structures or cultivation of large shrubs 

or trees that impede adult movement; 

manipulation of seeps, springs, or 

creeks that eliminates surface moisture; 

paved road construction in occupied 

habitat; and rural development that 

eliminates or fragments habitat. These 

activities reduce the amount of available 

habitat and directly and indirectly 

increase the extirpation probability of 

associated Laguna Mountains skipper 

populations. 

(3) Actions that would alter the 

vegetation of meadow habitat, for 

example invasion of exotic species or 

forest encroachment. Such activities 

could include, but are not limited to, 

stream or groundwater diversion. These 

activities could decrease the area of 

open meadow and soil moisture content 

and eliminate suitable Laguna 

Mountains skipper oviposition sites. 

Economic or fire management 

activities, such as logging, fuel 

modification, and relatively low density 

grazing should not adversely modify 

habitat if carefully managed to minimize 

or avoid destruction of host plants. 

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

Act 

Pursuant to section 4(b)(2) of the Act, 

we must consider relevant impacts in 

addition to economic ones. We are not 

aware of any habitat conservation plans 

currently being developed for Laguna 

Mountains skipper on any lands 

included in this proposal and the 

proposed designation does not include 

any Tribal lands or trust resources. 

Therefore, we are not proposing any 

exclusion of critical habitat under 

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

The Service is conducting an 

economic analysis of the impacts of the 

proposed critical habitat designation 

and related factors, which will be 

available for public review and 

comment. Based on public comment on 

that document, the proposed 

designation itself, and the information 

in the final economic analysis, habitat 

containing essential features for the 

Laguna Mountains skipper may be 

excluded from critical habitat by the 

Secretary under the provisions of 

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

provided for in the Act, and in our 

implementing regulations at 50 CFR 

242.19. 

Economic Analysis 

An analysis of the economic impacts 

of proposing critical habitat for the 

Laguna Mountains skipper is being 

prepared. We will announce the 

availability of the draft economic 

analysis as soon as it is completed, at 

which time we will seek public review 

and comment. At that time, copies of 

the draft economic analysis will be 

available for downloading from the 

Internet at http://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 3 

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. 

Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Proposed Rules 73709 

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. We will schedule public 

hearings on this proposal, if any are 

requested, and announce the dates, 

times, and places of those hearings in 

the Federal Register and local 

newspapers at least 15 days prior to the 

first hearing. 

Clarity of the Rule 

Executive Order 12866 requires each 

agency to write regulations and notices 

that are easy to understand. We invite 

your comments on how to make this 

proposed rule easier to understand, 

including answers to questions such as 

the following: (1) Are the requirements 

in the proposed rule clearly stated? (2) 

Does the proposed rule contain 

technical jargon that interferes with the 

clarity? (3) Does the format of the 

proposed rule (grouping and order of 

the sections, use of headings, 

paragraphing, and so forth) aid or 

reduce its clarity? (4) Is the description 

of the notice in the SUPPLEMENTARY

INFORMATION section of the preamble 

helpful in understanding the proposed 

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

this proposed rule easier to understand? 

Send a copy of any comments on how 

we could make this proposed rule easier 

to understand to: Office of Regulatory 

Affairs, Department of the Interior, 

Room 7229, 1849 C Street, NW., 

Washington, DC 20240. You may e-mail 

your comments to this address: 

Exsec@ios.doi.gov. 

Required Determinations 

Regulatory Planning and Review 

In accordance with Executive Order 

12866, this document is a significant 

rule in that it may raise novel legal and 

policy issues, but it is not anticipated to 

have an annual effect on the economy 

of $100 million or more or affect the 

economy in a material way. Due to the 

tight timeline for publication in the 

Federal Register, the Office of 

Management and Budget (OMB) has not 

formally reviewed this rule. We are 

preparing a draft economic analysis of 

this proposed action, which will be 

available for public comment, to 

determine the economic consequences 

of designating the specific area as 

critical habitat. This economic analysis 

also will be used to determine 

compliance with Executive Order 

12866, Regulatory Flexibility Act, Small 

Business Regulatory Enforcement 

Fairness Act, and Executive Order 

12630. 

Further, Executive Order 12866 

directs Federal Agencies promulgating 

regulations to evaluate regulatory 

alternatives (Office of Management and 

Budget, Circular A–4, September 17, 

2003). Under Circular A–4, once it has 

been determined that the Federal 

regulatory action is appropriate, the 

agency will need to consider alternative 

regulatory approaches. Since the 

determination of critical habitat is a 

statutory requirement pursuant to the 

Act, we must then evaluate alternative 

regulatory approaches, where feasible, 

when promulgating a designation of 

critical habitat. 

In developing our designations of 

critical habitat, we consider economic 

impacts, impacts to national security, 

and other relevant impacts pursuant to 

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

discretion allowable under this 

provision, we may exclude any 

particular area from the designation of 

critical habitat providing that the 

benefits of such exclusion outweigh the 

benefits of specifying the area as critical 

habitat and that such exclusion would 

not result in the extinction of the 

species. As such, we believe that the 

evaluation of the inclusion or exclusion 

of particular areas, or combination 

thereof, in a designation constitutes our 

regulatory alternative analysis. 

Within these areas, the types of 

Federal actions or authorized activities 

that we have identified as potential 

concerns are listed above in the section 

on Section 7 Consultation. The 

availability of the draft economic 

analysis will be announced in the 

Federal Register so that it is available 

for public review and comments. The 

draft economic analysis can be obtained 

from the internet website at http:// 

www.fws.gov/carlsbad/ or by contacting 

the Laguna Mountains skipper directly 

(see ADDRESSES). 

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

et seq.) 

Under the Regulatory Flexibility Act 

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

Small Business Regulatory Enforcement 

Fairness Act (SBREFA) of 1996), 

whenever an agency is required to 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effects of the rule on small 

entities (i.e., small businesses, small 

organizations, and small government 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of the agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. The SBREFA amended the 

Regulatory Flexibility Act (RFA) to 

require Federal agencies to provide a 

statement of the factual basis for 

certifying that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

At this time, the Service lacks the 

available economic information 

necessary to provide an adequate factual 

basis for the required RFA finding. 

Therefore, the RFA finding is deferred 

until completion of the draft economic 

analysis prepared pursuant to section 

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

draft economic analysis will provide the 

required factual basis for the RFA 

finding. Upon completion of the draft 

economic analysis, the Service will 

publish a notice of availability of the 

draft economic analysis of the proposed 

designation and reopen the public 

comment period for the proposed 

designation 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 

an Executive Order (E.O. 13211) on 

regulations that significantly affect 

energy supply, distribution, and use. 

Executive Order 13211 requires agencies 

to prepare Statements of Energy Effects 

when undertaking certain actions. This 

proposed rule to designate critical 

habitat for the Laguna Mountains 

skipper is considered a significant 

regulatory action under Executive Order 

12866 as it may raise novel legal and 

policy issues. However, this designation 

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. We will, 

however, further evaluate this issue as 

we conduct our economic analysis and, 

as appropriate, review and revise this 

assessment as warranted. 

73710 Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Proposed Rules 

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 it is a 

relatively small designation on mostly 

public and private land. The public 

lands being proposed for critical habitat 

designation are owned by the United 

States Forest Service and the State of 

California. None of these government 

entities fit the definition of ‘‘small 

governmental jurisdiction.’’ As such, a 

Small Government Agency Plan is not 

required. We will, however, further 

evaluate this issue as we conduct our 

economic analysis and as appropriate, 

review and revise this assessment as 

warranted. 

Takings 

In accordance with Executive Order 

12630 (‘‘Government Actions and 

Interference with Constitutionally 

Protected Private Property Rights’’), we 

have analyzed the potential takings 

implications of proposing critical 

habitat for the Laguna Mountains 

skipper in a takings implications 

assessment. The takings implications 

assessment concludes that the proposed 

designation of critical habitat will not 

result in significant takings 

implications. 

Federalism 

In accordance with Executive Order 

13132, the rule does not have significant 

Federalism effects. A Federalism 

assessment is not required. In keeping 

with DOI and Department of Commerce 

policy, we requested information from, 

and coordinated development of, this 

proposed critical habitat designation 

with appropriate State resource agencies 

in California. The designation of critical 

habitat in areas currently occupied by 

the Laguna Mountains skipper imposes 

no additional restrictions to those 

currently in place and, therefore, has 

little incremental impact on State and 

local governments and their activities. 

The designation may have some benefit 

to these governments in that the areas 

essential to the conservation of the 

species are more clearly defined, and 

the primary constituent elements of the 

habitat necessary to the survival of the 

species are specifically identified. While 

making this definition and 

identification does not alter where and 

what federally sponsored activities may 

occur, it may assist these local 

governments in long-range planning 

(rather than waiting for case-by-case 

section 7 consultations to occur). 

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 primary constituent 

elements within the designated areas to 

assist the public in understanding the 

habitat needs of the Laguna Mountains 

skipper. 

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 

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 

will be working with the tribes on 

Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Proposed Rules 73711 

whose land where there is a possibility 

of Laguna Mountains skipper occupancy 

to more precisely determine the 

distribution of Laguna Mountains 

skipper habitat and occupancy, and 

management options. No Laguna 

Mountains skippers have been reported 

from Tribal lands. Therefore, no 

designation of critical habitat for the 

Laguna Mountains skipper has been 

proposed on Tribal lands. 

References Cited 

A complete list of all references cited 

in this rulemaking is available upon 

request from the Field Supervisor, 

Carlsbad Fish and Wildlife Office (see 

ADDRESSES section). 

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 § 17.11(h), revise the entry for 

‘‘Skipper, Laguna Mountains ‘‘ under 

‘‘INSECTS’’ to read as follows: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

Species Historic range Vertebrate population where endangered or threatened 

Status When 

listed 

Critical 

habitat 

Special 

rules Common name Scientific name 

* * * * * * * 

INSECTS

* * * * * * * 

Skipper, Laguna 

Mountains.

Pyrgus ruralis 

lagunae.

U.S.A. ..................... Entire ...................... E 604 17.95(i) NA 

* * * * * * * 

3. In § 17.95(i), add the entry for 

Laguna Mountains Skipper (Pyrgus 

ruralis lagunae) under ‘‘INSECTS’’ to 

read as follows: 

§ 17.95 Critical habitat-fish and wildlife. 

* * * * * 

(i) Insects. 

* * * * * 

Laguna Mountains Skipper (Pyrgus 

ruralis lagunae) 

(1) Critical habitat units are depicted 

for San Diego County, California, on the 

maps below. 

(2) The primary constituent elements 

of critical habitat for the Laguna 

Mountains skipper are the habitat 

components that provide: 

(i) The host plants, Horkelia 

clevelandii or Potentila glandulosa, in 

meadows or forest openings needed for 

reproduction. 

(ii) Nectar sources suitable for feeding 

by adult Laguna Mountains skipper, 

including Lasthenia spp., Pentachaeta 

aurea, Ranunculus spp., and Sidalcea 

spp. 

(iii) Wet soil or standing water 

associated with features such as seeps, 

springs, or creeks where water and 

minerals are obtained during the adult 

flight season. 

(3) Critical habitat does not include 

man-made structures existing on the 

effective date of this rule and not 

containing one or more of the primary 

constituent elements, such as buildings, 

aqueducts, airports, and roads, and the 

land on which such structures are 

located. 

(4) Data layers defining map units 

were created on a., on a base of USGS 

1:24,000 quadrangle maps, and critical 

habitat units were then mapped using 

Universal Transverse Mercator (UTM) 

coordinates. 

(5) Note: Map 1 (index map) follows. 

BILLING CODE 4310–55–U 

73712 Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Proposed Rules 

BILLING CODE 4310–55–C (6) Unit 1: Laguna Mountain, San 

Diego County, California. From USGS 

1:24,000 quadrangle maps Monument 

Peak and Mount Laguna. 


EP13DE05.005</GPH>
Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Proposed Rules 73713 

(i) Subunit 1A: lands bounded by the 

following UTM NAD27 coordinates 

(E,N): 553000, 3637800; 553000, 

3638000; 553100, 3638000; 553100, 

3638100; 553600, 3638100; 553600, 

3638000; 553800, 3638000; 553800, 

3637900; 553700, 3637900; 553700, 

3637600; 553800, 3637600; 553800, 

3637400; 553700, 3637400; 553700, 

3637500; 553500, 3637500; 553500, 

3637200; 553100, 3637200; 553100, 

3637100; 553200, 3637100; 553200, 

3637000; 553300, 3637000; 553300, 

3636800; 553400, 3636800; 553400, 

3636700; 553200, 3636700; 553200, 

3636800; 553000, 3636800; 553000, 

3636900; 552900, 3636900; 552900, 

3637000; 552800, 3637000; 552800, 

3637100; 552700, 3637100; 552700, 

3637000; 552600, 3637000; 552600, 

3637100; 552400, 3637100; 552400, 

3637200; 552300, 3637200; 552300, 

3637100; 552200, 3637100; 552200, 

3637000; 552000, 3637000; 552000, 

3637100; 551900, 3637100; 551900, 

3637300; 551500, 3637300; 551500, 

3637200; 551400, 3637200; 551400, 

3637100; 551200, 3637100; 551200, 

3636700; 551300, 3636700; 551300, 

3636600; 551400, 3636600; 551400, 

3636500; 551600, 3636500; 551600, 

3636400; 551700, 3636400; 551700, 

3636300; 551800, 3636300; 551800, 

3636200; 552000, 3636200; 552000, 

3636100; 552100, 3636100; 552100, 

3636000; 552200, 3636000; 552200, 

3635900; 552300, 3635900; 552300, 

3635800; 552400, 3635800; 552400, 

3635600; 552500, 3635600; 552500, 

3635500; 552300, 3635500; 552300, 

3635400; 552100, 3635400; 552100, 

3635100; 552000, 3635100; 552000, 

3634800; 551800, 3634800; 551800, 

3635000; 551600, 3635000; 551600, 

3634900; 551400, 3634900; 551400, 

3635300; 551300, 3635300; 551300, 

3635600; 551200, 3635600; 551200, 

3635700; 551100, 3635700; 551100, 

3636000; 551000, 3636000; 551000, 

3636100; 550900, 3636100; 550900, 

3636200; 550800, 3636200; 550800, 

3636100; 550700, 3636100; 550700, 

3636000; 550800, 3636000; 550800, 

3635800; 550600, 3635800; 550600, 

3635700; 550500, 3635700; 550500, 

3635500; 550400, 3635500; 550400, 

3635400; 550300, 3635400; 550300, 

3635300; 550100, 3635300; 550100, 

3635500; 550000, 3635500; 550000, 

3635600; 549900, 3635600; 549900, 

3635900; 550000, 3635900; 550000, 

3636200; 549800, 3636200; 549800, 

3636500; 549900, 3636500; 549900, 

3636600; 549800, 3636600; 549800, 

3636700; 549700, 3636700; 549700, 

3637000; 549800, 3637000; 549800, 

3637100; 549900, 3637100; 549900, 

3637600; 550200, 3637600; 550200, 

3637900; 550100, 3637900; 550100, 

3638500; 550000, 3638500; 550000, 

3638600; 549900, 3638600; 549900, 

3638500; 549800, 3638500; 549800, 

3638000; 549700, 3638000; 549700, 

3637700; 549500, 3637700; 549500, 

3638000; 549600, 3638000; 549600, 

3638100; 549500, 3638100; 549500, 

3638200; 549100, 3638200; 549100, 

3638400; 549200, 3638400; 549200, 

3638500; 549300, 3638500; 549300, 

3638800; 549400, 3638800; 549400, 

3638900; 549300, 3638900; 549300, 

3639000; 549600, 3639000; 549600, 

3638600; 549700, 3638600; 549700, 

3638700; 549800, 3638700; 549800, 

3638900; 549900, 3638900; 549900, 

3639000; 549700, 3639000; 549700, 

3639200; 549600, 3639200; 549600, 

3639300; 549500, 3639300; 549500, 

3639500; 549400, 3639500; 549400, 

3639600; 549300, 3639600; 549300, 

3639800; 549200, 3639800; 549200, 

3639900; 549100, 3639900; 549100, 

3640200; 549400, 3640200; 549400, 

3640100; 549700, 3640100; 549700, 

3640000; 549800, 3640000; 549800, 

3640100; 549900, 3640100; 549900, 

3640200; 549700, 3640200; 549700, 

3640300; 549600, 3640300; 549600, 

3640500; 549800, 3640500; 549800, 

3640600; 549900, 3640600; 549900, 

3640700; 550200, 3640700; 550200, 

3640600; 550500, 3640600; 550500, 

3640500; 550600, 3640500; 550600, 

3640400; 550700, 3640400; 550700, 

3640200; 550300, 3640200; 550300, 

3640000; 551000, 3640000; 551000, 

3639900; 551100, 3639900; 551100, 

3639700; 550800, 3639700; 550800, 

3639600; 550600, 3639600; 550600, 

3639700; 550500, 3639700; 550500, 

3639400; 550400, 3639400; 550400, 

3639300; 550500, 3639300; 550500, 

3639200; 550600, 3639200; 550600, 

3639100; 550700, 3639100; 550700, 

3639000; 550800, 3639000; 550800, 

3638900; 551000, 3638900; 551000, 

3639300; 551100, 3639300; 551100, 

3639500; 551300, 3639500; 551300, 

3639900; 551600, 3639900; 551600, 

3639700; 551700, 3639700; 551700, 

3639400; 551800, 3639400; 551800, 

3639300; 551900, 3639300; 551900, 

3639100; 551800, 3639100; 551800, 

3639000; 551900, 3639000; 551900, 

3638900; 552000, 3638900; 552000, 

3638800; 552200, 3638800; 552200, 

3638700; 552500, 3638700; 552500, 

3638300; 552300, 3638300; 552300, 

3638400; 552200, 3638400; 552200, 

3638300; 551900, 3638300; 551900, 

3637900; 552000, 3637900; 552000, 

3637800; 553000, 3637800. 

(ii) Subunit 1B: lands bounded by the 

following UTM NAD27 coordinates 

(E,N): 550000, 3643000; 550200, 

3643000; 550200, 3642800; 550100, 

3642800; 550100, 3642700; 550000, 

3642700; 550000, 3642400; 550200, 

3642400; 550200, 3642200; 550000, 

3642200; 550000, 3642100; 549900, 

3642100; 549900, 3642000; 550100, 

3642000; 550100, 3641800; 550500, 

3641800; 550500, 3641600; 550400, 

3641600; 550400, 3641300; 550200, 

3641300; 550200, 3641200; 550100, 

3641200; 550100, 3641100; 550200, 

3641100; 550200, 3640900; 549600, 

3640900; 549600, 3641000; 549300, 

3641000; 549300, 3642000; 549200, 

3642000; 549200, 3642400; 549300, 

3642400; 549300, 3642300; 549400, 

3642300; 549400, 3642500; 549700, 

3642500; 549700, 3642600; 549800, 

3642600; 549800, 3642700; 549900, 

3642700; 549900, 3642900; 550000, 

3642900; 550000, 3643000. 

(iii) Subunit 1C: lands bounded by the 

following UTM NAD27 coordinates 

(E,N): 552800, 3635600; 553100, 

3635600; 553100, 3635400; 553300, 

3635400; 553300, 3635300; 553400, 

3635300; 553400, 3635200; 553300, 

3635200; 553300, 3635100; 553200, 

3635100; 553200, 3635000; 553400, 

3635000; 553400, 3634800; 553600, 

3634800; 553600, 3634600; 553700, 

3634600; 553700, 3634200; 553600, 

3634200; 553600, 3634100; 553500, 

3634100; 553500, 3634000; 553400, 

3634000; 553400, 3633800; 553300, 

3633800; 553300, 3633600; 553200, 

3633600; 553200, 3633300; 553300, 

3633300; 553300, 3633200; 553500, 

3633200; 553500, 3633300; 553600, 

3633300; 553600, 3633000; 553700, 

3633000; 553700, 3632300; 553600, 

3632300; 553600, 3632200; 553300, 

3632200; 553300, 3632300; 553200, 

3632300; 553200, 3633000; 553100, 

3633000; 553100, 3633200; 553000, 

3633200; 553000, 3633300; 552900, 

3633300; 552900, 3632800; 552800, 

3632800; 552800, 3632600; 552700, 

3632600; 552700, 3632500; 552600, 

3632500; 552600, 3632400; 552500, 

3632400; 552500, 3632300; 552300, 

3632300; 552300, 3632600; 552400, 

3632600; 552400, 3632700; 552500, 

3632700; 552500, 3632800; 552600, 

3632800; 552600, 3633000; 552700, 

3633000; 552700, 3633400; 552800, 

3633400; 552800, 3633800; 552700, 

3633800; 552700, 3634300; 552800, 

3634300; 552800, 3634500; 552900, 

3634500; 552900, 3634900; 552800, 

3634900; 552800, 3635600. 

(iv) Note: Unit 1 (Map 2) follows. 

BILLING CODE 4310–55–U 

73714 Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Proposed Rules 

BILLING CODE 4310–55–C (7) Unit 2: Palomar Mountain, San 

Diego County, California. From USGS 

1:24,000 quadrangle maps Boucher Hill 

and Palomar Observatory. 


EP13DE05.006</GPH>
Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Proposed Rules 73715 

(i) Subunit 2A: lands bounded by the 

following UTM NAD27 coordinates (E, 

N): 511300, 3689300; 511400, 3689300; 

511400, 3689200; 511600, 3689200; 

511600, 3689100; 511700, 3689100; 

511700, 3689000; 511800, 3689000; 

511800, 3688900; 512300, 3688900; 

512300, 3688800; 512400, 3688800; 

512400, 3689000; 512900, 3689000; 

512900, 3688900; 513200, 3688900; 

513200, 3688800; 513400, 3688800; 

513400, 3688700; 513700, 3688700; 

513700, 3688600; 513900, 3688600; 

513900, 3688500; 514000, 3688500; 

514000, 3688400; 514100, 3688400; 

514100, 3688300; 514400, 3688300; 

514400, 3688200; 514500, 3688200; 

514500, 3688100; 515300, 3688100; 

515300, 3688000; 515400, 3688000; 

515400, 3687900; 515500, 3687900; 

515500, 3687800; 515700, 3687800; 

515700, 3687600; 515900, 3687600; 

515900, 3687300; 515800, 3687300; 

515800, 3687200; 515900, 3687200; 

515900, 3687100; 516000, 3687100; 

516000, 3687000; 516300, 3687000; 

516300, 3686900; 516400, 3686900; 

516400, 3686800; 516500, 3686800; 

516500, 3686700; 516600, 3686700; 

516600, 3686600; 517000, 3686600; 

517000, 3686300; 517200, 3686300; 

517200, 3686200; 517300, 3686200; 

517300, 3686000; 517100, 3686000; 

517100, 3685800; 517200, 3685800; 

517200, 3685700; 516700, 3685700; 

516700, 3685800; 516600, 3685800; 

516600, 3686000; 516500, 3686000; 

516500, 3686100; 516400, 3686100; 

516400, 3686200; 516300, 3686200; 

516300, 3686300; 516200, 3686300; 

516200, 3686400; 516000, 3686400; 

516000, 3686600; 515900, 3686600; 

515900, 3686700; 515800, 3686700; 

515800, 3686800; 515700, 3686800; 

515700, 3686900; 515500, 3686900; 

515500, 3687000; 515200, 3687000; 

515200, 3687100; 514900, 3687100; 

514900, 3687200; 514800, 3687200; 

514800, 3687300; 514500, 3687300; 

514500, 3687500; 514400, 3687500; 

514400, 3687600; 514300, 3687600; 

514300, 3687700; 514200, 3687700; 

514200, 3687800; 514100, 3687800; 

514100, 3687900; 514000, 3687900; 

514000, 3688000; 513700, 3688000; 

513700, 3688100; 513500, 3688100; 

513500, 3688000; 513400, 3688000; 

513400, 3687700; 513300, 3687700; 

513300, 3687400; 513200, 3687400; 

513200, 3687300; 513000, 3687300; 

513000, 3687600; 512900, 3687600; 

512900, 3688000; 512800, 3688000; 

512800, 3688100; 512500, 3688100; 

512500, 3688200; 512400, 3688200; 

512400, 3688400; 512300, 3688400; 

512300, 3688500; 512000, 3688500; 

512000, 3688600; 511900, 3688600; 

511900, 3688500; 511700, 3688500; 

511700, 3688800; 511500, 3688800; 

511500, 3688900; 511400, 3688900; 

511400, 3689000; 511300, 3689000; 

511300, 3689100; 511200, 3689100; 

511200, 3689200; 511300, 3689200; 

511300, 3689300. 

(ii) Subunit 2B: lands bounded by the 

following UTM NAD27 coordinates 

(E,N): 513000, 3690900; 513000, 

3690800; 513200, 3690800; 513200, 

3690600; 513100, 3690600; 513100, 

3690400; 513200, 3690400; 513200, 

3690300; 513300, 3690300; 513300, 

3690000; 513200, 3690000; 513200, 

3689900; 513300, 3689900; 513300, 

3689600; 512900, 3689600; 512900, 

3689400; 512700, 3689400; 512700, 

3689500; 512600, 3689500; 512600, 

3689300; 512300, 3689300; 512300, 

3689400; 512200, 3689400; 512200, 

3689500; 512000, 3689500; 512000, 

3689700; 511900, 3689700; 511900, 

3689900; 511800, 3689900; 511800, 

3690200; 511700, 3690200; 511700, 

3690300; 511600, 3690300; 511600, 

3690500; 511500, 3690500; 511500, 

3690600; 511200, 3690600; 511200, 

3690700; 511100, 3690700; 511100, 

3690800; 510800, 3690800; 510800, 

3690900; 510700, 3690900; 510700, 

3690800; 510600, 3690800; 510600, 

3690900; 510500, 3690900; 510500, 

3691000; 510200, 3691000; 510200, 

3690900; 510300, 3690900; 510300, 

3690600; 510400, 3690600; 510400, 

3690300; 510200, 3690300; 510200, 

3690400; 509800, 3690400; 509800, 

3690500; 509700, 3690500; 509700, 

3690600; 509500, 3690600; 509500, 

3690700; 509400, 3690700; 509400, 

3690800; 509300, 3690800; 509300, 

3690900; 509100, 3690900; 509100, 

3691000; 509000, 3691000; 509000, 

3691200; 509200, 3691200; 509200, 

3691100; 509400, 3691100; 509400, 

3691300; 509300, 3691300; 509300, 

3691500; 509500, 3691500; 509500, 

3691400; 510000, 3691400; 510000, 

3691500; 510100, 3691500; 510100, 

3691600; 510200, 3691600; 510200, 

3691700; 510700, 3691700; 510700, 

3691600; 511000, 3691600; 511000, 

3691500; 511100, 3691500; 511100, 

3691400; 511400, 3691400; 511400, 

3691200; 511600, 3691200; 511600, 

3691100; 511700, 3691100; 511700, 

3691000; 511900, 3691000; 511900, 

3690900; 512000, 3690900; 512000, 

3690700; 511800, 3690700; 511800, 

3690600; 511900, 3690600; 511900, 

3690500; 512000, 3690500; 512000, 

3690400; 512100, 3690400; 512100, 

3690300; 512200, 3690300; 512200, 

3690200; 512500, 3690200; 512500, 

3690300; 512700, 3690300; 512700, 

3690400; 512600, 3690400; 512600, 

3690600; 512500, 3690600; 512500, 

3690700; 512400, 3690700; 512400, 

3690800; 512300, 3690800; 512300, 

3691100; 512500, 3691100; 512500, 

3691200; 513100, 3691200; 513100, 

3691300; 513200, 3691300; 513200, 

3691200; 513300, 3691200; 513300, 

3690900; 513000, 3690900; excluding 

lands bounded by the following UTM 

NAD27 coordinates (E,N): 509900, 

3691000; 510100, 3691000; 510100, 

3690900; 510000, 3690900; 510000, 

3690800; 509900, 3690800; 509900, 

3691000; and 512800, 3691000; 513000, 

3691000; 513000, 3690900; 512800, 

3690900; 512800, 3691000. 

(iii) Subunit 2C: lands bounded by the 

following UTM NAD27 coordinates (E, 

N): 509200, 3689100; 509400, 3689100; 

509400, 3689000; 509700, 3689000; 

509700, 3688700; 509800, 3688700; 

509800, 3688600; 510200, 3688600; 

510200, 3688900; 510800, 3688900; 

510800, 3688800; 511100, 3688800; 

511100, 3688600; 511200, 3688600; 

511200, 3688500; 511300, 3688500; 

511300, 3688400; 511200, 3688400; 

511200, 3688300; 511500, 3688300; 

511500, 3688200; 511600, 3688200; 

511600, 3687900; 511300, 3687900; 

511300, 3687600; 511200, 3687600; 

511200, 3687500; 511100, 3687500; 

511100, 3687400; 511200, 3687400; 

511200, 3687100; 511000, 3687100; 

511000, 3687200; 510900, 3687200; 

510900, 3687300; 510600, 3687300; 

510600, 3687500; 510500, 3687500; 

510500, 3687400; 510400, 3687400; 

510400, 3687500; 510300, 3687500; 

510300, 3687600; 510400, 3687600; 

510400, 3687700; 510500, 3687700; 

510500, 3687800; 510400, 3687800; 

510400, 3687900; 510300, 3687900; 

510300, 3687800; 510100, 3687800; 

510100, 3687900; 509900, 3687900; 

509900, 3688200; 509800, 3688200; 

509800, 3688300; 509700, 3688300; 

509700, 3688400; 509500, 3688400; 

509500, 3688500; 509300, 3688500; 

509300, 3688600; 509200, 3688600; 

509200, 3689100. 

(iv) Subunit 2D: lands bounded by the 

following UTM NAD27 coordinates 

(E,N): 507700, 3690800; 508000, 

3690800; 508000, 3690700; 508100, 

3690700; 508100, 3690800; 508300, 

3690800; 508300, 3690600; 508400, 

3690600; 508400, 3690500; 508500, 

3690500; 508500, 3690300; 508400, 

3690300; 508400, 3690100; 508500, 

3690100; 508500, 3690000; 508600, 

3690000; 508600, 3689900; 508700, 

3689900; 508700, 3689700; 508800, 

3689700; 508800, 3689600; 508900, 

3689600; 508900, 3689100; 508700, 

3689100; 508700, 3689200; 508600, 

3689200; 508600, 3689300; 508400, 

3689300; 508400, 3689400; 508200, 

3689400; 508200, 3689800; 508000, 

3689800; 508000, 3690000; 507900, 

3690000; 507900, 3690200; 507800, 

73716 Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Proposed Rules 

3690200; 507800, 3690400; 507500, 

3690400; 507500, 3690300; 507400, 

3690300; 507400, 3690500; 507500, 

3690500; 507500, 3690700; 507700, 

3690700; 507700, 3690800. 

(v) Note: Unit 2 (Map 3) follows. 


EP13DE05.007</GPH>
Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Proposed Rules 73717 

* * * * * 

Dated: November 30, 2005. 

Craig Manson, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. 05–23691 Filed 12–12–05; 8:45 am] 

BILLING CODE 4310–55–C 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 697 

[Docket No. 051129315–5315–01; I.D. 

112505A] 

RIN 0648–AU07 

Atlantic Coastal Fisheries Cooperative 

Management Act Provisions; American 

Lobster Fishery 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Advance notice of proposed 

rulemaking. 

SUMMARY: NMFS announces that it is 

considering, and seeking public 

comment on the implementation of 

further minimum carapace length 

(gauge) increases and escape vent size 

increases in the Federal lobster fishery, 

consistent with recommendations for 

Federal action in the Atlantic States 

Marine Fisheries Commission’s 

(Commission) Interstate Fishery 

Management Plan for American Lobster 

(ISFMP). NMFS would issue these 

regulations according to its authority 

under the Atlantic Coastal Fisheries 

Cooperative Management Act 

(ACFCMA). While a September 2, 2005, 

proposed rule considered gauge 

increases and escape vent size increases 

as scheduled through 2004 in Addenda 

II and III to Amendment 3 of the ISFMP, 

the proposed rule did not address; 

additional gauge increases scheduled 

annually from 2005 through 2008 in 

Lobster Conservation Management 

Areas (LCMA) 3 and the Outer Cape 

Lobster Conservation Management Area 

(OCLCMA), an increase to the escape 

vent size in LCMA 3 and the OCLCMA 

scheduled for 2008, and an escape vent 

size increase for LCMA 1 scheduled for 

2007. Accordingly, NMFS is seeking 

written public comments on these 

additional gauge and escape vent size 

requirements as set forth in the ISFMP 

and recommended for Federal 

implementation by the Commission. 

DATES: Comments must be received by 

January 12, 2006. 

ADDRESSES: Written comments should 

be sent to Harold Mears, Director, State, 

Federal and Constituent Programs 

Office, Northeast Region, NMFS, One 

Blackburn Drive, Gloucester, MA 01930. 

Comments may also be sent via e-mail 

to Lob1205@noaa.gov, via fax (978) 281–

9117 or via the Federal e-Rulemaking 

portal at www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Peter Burns, Fishery Management 

Specialist, (978) 281–9144, fax (978) 

281–9117, e-mail peter.burns@noaa.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

Addenda II through VII are part of an 

overall lobster fishery management 

regime set forth in Amendment 3 to the 

ISFMP. The intent of Amendment 3, 

approved by the Commission in 

December 1997, is to achieve a healthy 

American lobster resource and to 

develop a management regime that 

provides for sustained harvest, 

maintains opportunities for 

participation, and provides for the 

cooperative development of 

conservation measures by all 

stakeholders. In short, Amendment 3 

was envisioned to provide much of the 

framework upon which future lobster 

management - to be set forth in later 

addenda - would be based. In particular, 

Amendment 3 employed a participatory 

management approach by creating the 

seven lobster management areas, each 

with its own lobster conservation 

management team (LCMT) comprised of 

industry members. Amendment 3 tasked 

the LCMTs with providing 

recommendations for area-specific 

management measures to the 

Commission’s Lobster Management 

Board (Board) to meet the lobster egg 

production and effort reduction goals of 

the ISFMP. NMFS has the authority 

under the ACFCMA to implement 

regulations in Federal waters that are 

compatible with the effective 

implementation of the ISFMP and 

consistent with the national standards 

of the Magnuson-Stevens Fishery 

Conservation and Management Act. 

These Federal regulations are 

promulgated pursuant to the ACFCMA 

and are codified at 50 CFR part 697. 

Commission Addendum 1 to 

Amendment 3 focused largely on effort 

control measures. The Commission 

approved Addendum 1 in August 1999, 

with NMFS promulgating compatible 

regulations on March 27, 2003 (68 FR 

14902). The Board approved the egg 

production measures as Addenda II and 

III in February 2001, and February 2002, 

respectively, and recommended that 

NMFS implement complementary 

Federal regulations. NMFS began a 

rulemaking in response to these 

addenda, and most recently published a 

proposed rule on September 2, 2005 (70 

FR 52346). In December 2003, the Board 

approved Addendum IV which, in part, 

included additional egg production 

measures. Addenda V and VI did not 

include any further measures pertinent 

to egg production and, therefore, are not 

included within the scope of this 

advance notice of proposed rulemaking 

(ANPR). Addendum VII, approved by 

the Board in November 2005, facilitates 

effort control measures and constitutes 

a limited access program for the lobster 

trap fishery in the state waters of LCMA 

2 based on historical participation. In 

approving Addendum VII, the Board 

opted not to continue with the 

previously adopted schedule of 

minimum carapace length increases in 

LCMA 2 (Addendum III) and voted to 

maintain the minimum legal carapace 

length (gauge) at 3 3/8 inches (8.57 

centimeters (cm)). This option allows 

the Board to adjust the minimum gauge 

size in the future pending new stock 

assessment results and changes to the 

plan addenda or amendments. 

ISFMP Measures Already Analyzed 

and Proposed by NMFS 

The American lobster egg production 

and broodstock protection measures in 

the collective addenda include annual 

minimum gauge size increases, lobster 

trap escape vent size increases, 

maximum carapace size restrictions and 

v-notch protection. Many of these 

measures in the collective addenda were 

already analyzed and proposed for 

implementation by NMFS in the 

September 2, 2005, proposed rule. 

These include: maximum carapace 

length restrictions for LCMAs 4 and 5; 

mandatory v-notching of egg-bearing 

female lobsters in LCMA 1 and the 

portion of LCMA 3 that lies north of the 

42°30′ N. latitude line; a zero tolerance 

definition of v-notched female lobster in 

LCMA 1; minimum gauge size increases 

to 3 3/8 inches (8.57 cm) in LCMAs 2, 

3, 4, 5 and the OCLCMA; and lobster 

trap escape vent size increases to 2 

inches X 5 3/4 inches rectangular (5.08 

cm X 14.61 cm) and 2 5/8 inches (6.67 

cm) diameter circular in LCMAs 2, 3, 4, 

5 and the OCLCMA. 

Additional minimum gauge increases 

and escape vent size increases are 

included in the addenda but were not 

addressed in the September 2, 2005, 

proposed rule because the entire gauge 

increase schedule, although included in 

the approved Commission addenda, had 

not actually occurred at the time of 

analysis for corresponding changes to 

the Federal rules. In other words, the