[Federal Register Volume 73, Number 31 (Thursday, February 14, 2008)]
[Rules and Regulations]
[Pages 8748-8785]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 08-545]



[[Page 8747]]

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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Revised Designation of 
Critical Habitat for Astragalus magdalenae var. peirsonii (Peirson's 
Milk-Vetch); Final Rule

Federal Register / Vol. 73, No. 31 / Thursday, February 14, 2008 / 
Rules and Regulations

[[Page 8748]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R8-ES-2008-0019; 92210-117-0000-B4]
RIN 1018-AU98


Endangered and Threatened Wildlife and Plants; Revised 
Designation of Critical Habitat for Astragalus magdalenae var. 
peirsonii (Peirson's Milk-Vetch)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
designating final revised critical habitat for Astragalus magdalenae 
var. peirsonii (Peirson's milk-vetch) under the Endangered Species Act 
of 1973, as amended (Act). In total, approximately 12,105 acres (ac) 
(4,899 hectares (ha)) fall within the boundaries of the revised 
critical habitat designation for A. m. var. peirsonii. The revised 
critical habitat is located in Imperial County, California. We are 
excluding Unit 2 from this revised designation based on the 
disproportionate economic and social impacts associated with the 
designation of this unit relative to the other units designated as 
critical habitat. This final revised designation constitutes a 
reduction of 9,758 ac (3,949 ha) from our 21,863 ac (8,848 ha) previous 
final designation of critical habitat for A. m. var. peirsonii 
published in 2004.

DATES: This rule becomes effective on March 17, 2008.

ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov. In addition, the final revised rule, economic 
analysis, and maps are available at http://www.fws.gov/carlsbad/. 
Supporting documentation we used in preparing this final rule, will be 
available for public inspection, by appointment, during normal business 
hours, at the U.S. Fish and Wildlife Service, Carlsbad Fish and 
Wildlife Office, 6010 Hidden Valley Road, Carlsbad, CA 92011; telephone 
760-431-9440; facsimile 760-431-5901.

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, U.S. 
Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 
Hidden Valley Road, Carlsbad, CA 92011; telephone 760-431-9440; 
facsimile 760-431-5901. If you use a telecommunications device for the 
deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-
877-8339.

SUPPLEMENTARY INFORMATION: 

Background

    This final rule addresses revised critical habitat for Astragalus 
magdalenae var. peirsonii. For additional information on the taxonomy, 
biology, and ecology of this taxon, refer to the final rule listing the 
taxon as threatened, published in the Federal Register on October 6, 
1998 (63 FR 53596), the proposed and final rules designating critical 
habitat for this taxon published in the Federal Register on August 5, 
2003 (68 FR 46143) and on August 4, 2004 (69 FR 47330), respectively, 
and the proposed rule to revise critical habitat published in the 
Federal Register on July 27, 2007 (72 FR 41258). It is our intention to 
discuss only those topics directly relevant to the revised designation 
of critical habitat in this final revised rule.
    Astragalus magdalenae var. peirsonii is an erect to spreading, 
herbaceous member of the Fabaceae (legume family) (Barneby 1959, p. 
879; 1964, p. 862) that occurs on bowls, swales, and slopes of intact, 
active windblown sand dunes of the Algodones Dunes of Imperial County, 
California and the northeastern Estado de Baja California and Gran 
Desierto of northwestern Sonora, Mexico (Felger 2000, p. 300; 
Spellenberg 1993, p. 598; Willoughby 2005a, p. 2). Please refer to the 
``Primary Constituent Elements'' section below for additional 
discussion on habitat requirements of this taxon. Plants may reach 8 to 
27 inches (in) (20 to 70 centimeters (cm)) in height and develop tap 
roots (Barneby 1964, pp. 863-864) that penetrate deeply to the moister 
sand and that anchor plants in the shifting sand dunes. The root crown 
is often exposed by wind action moving the sand away from the base of 
the plants. Seeds are enclosed in fruits or pods and are either 
dispersed locally by falling out of partly opened fruits on the parent 
plant, ``salt-shaker'' style, or are dispersed further if blown across 
the sand after falling from the parent plant. Thus seeds can be 
transported from one favorable site to another, or remain near the 
parent plant, depending on winds (Phillips et al. 2001, p. 11).
    Seeds require no pre-treatment to induce germination, but 
germination success has been shown to improve dramatically when the 
outer seed coat is scarified (e.g., scratched, chipped) (Porter et al. 
2005, p. 29). Germination appears to be more successful in the cooler 
months of the year when temperatures are less than 86 [deg]F (30 
[deg]C) (Romspert and Burk 1979, pp. 45-46). Therefore, based on our 
current understanding of the taxon's life history, sufficient rain in 
conjunction with cool temperatures and wetter-than-average fall weather 
appears to trigger germination events.
    Depending upon conditions, Astragalus magdalenae var. peirsonii is 
capable of flowering before it is one year old (Barneby 1964, p. 862; 
Romspert and Burk 1979, p. 16; Phillips et al. 2001, p. 10; Phillips 
and Kennedy 2005, p. 22). Porter et al. (2005, pp. 31-32) hypothesized 
that if rains occur early in the growing season, then flowering can 
begin in as little as 3 months after germination. If, on the other 
hand, rains (and germination) do not occur until late February, then 
flowering is delayed until the next rainy season. In dry years, 
individuals die and are not replaced by new seedlings.
    This variability in annual abundance of above-ground plants has 
caused this taxon to be considered variously as an annual (completing 
its life cycle in a year or growing season) or a perennial (living for 
more than 2 years) (Munz 1932, p. 7; Munz 1974, p. 432; Barneby 1959, 
p. 879; Barneby 1964, p. 862; Spellenberg 1993, p. 598; Willoughby 
2001, p. 21). Recent evidence has confirmed that this species is a 
short-lived perennial (Phillips et al. 2001, p. 10; Porter et al. 2005, 
pp. 31, 34). This taxon likely depends on the production of seeds in 
wetter years and the persistence of the seed bank from previous years 
to survive until appropriate conditions for germination occur again. 
Porter et al. (2005, p. 29) identified the primary dormancy mechanism 
in Astragalus magdalenae var. peirsonii as the impermeability of the 
seed coat to water and demonstrated little loss of viability in seeds 
stored for 5 years. This dormancy mechanism is consistent with species 
having a seed bank (Given 1994, p. 67). Dispersed seeds in a given year 
that do not germinate during the subsequent growing season become part 
of the soil seed bank (Given 1994, p. 67).

Species Distribution and Abundance

    In the United States, Astragalus magdalenae var. peirsonii is 
restricted to about 53,000 ac (21,500 ha) in a narrow band running 40 
miles (mi) (64 kilometers (km)) northwest to southeast along the 
western portion of the Algodones Dunes of eastern Imperial County, 
California, which is the largest sand dune field in North America. 
Astragalus magdalenae var. peirsonii has also been documented from the 
Gran Desierto of Sonora, Mexico (Felger 2000, p. 300) from an area 
south and southeast of the Sierra Pinacate lava

[[Page 8749]]

field, but the Service has no additional information on the size of the 
population or extent of area occupied (63 FR 53599). The taxon was 
noted from the Borrego Valley, California, by Barneby (1959, p. 879) 
but no verified, reproducing population exists (Porter et al. 2005, pp. 
9-10). Other observations from Yuma, Arizona, and San Felipe, Baja 
California, Mexico, were based on misidentified specimens (see Porter 
et al. 2005, pp. 9-10, and Phillips et al. 2001, p. 7, for detailed 
accounts).
    The Algodones Dunes (Dunes) are one of the largest sand dune fields 
in North America, extending about 40 mi (64 km), trending from 
northwest to southeast (Norris and Norris 1961, p. 608). Please refer 
to the 2003 proposed critical habitat rule for a more detailed 
discussion on the geomorphology of the Dunes (68 FR 46143). These dunes 
are often referred to as the Imperial Sand Dunes, a designation derived 
from their inclusion in the Imperial Sand Dunes Recreation Area (ISDRA) 
established by the Bureau of Land Management (BLM). The majority of the 
Dunes is managed by BLM within 8 management areas, of which 7 are 
occupied by Astragalus magdalenae var. peirsonii (Mammoth Wash, North 
Algodones Wilderness, Glamis, Gecko, Adaptive Management Area (AMA), 
Ogilby, and Buttercup). The State of California and private individuals 
own some small inholdings in the Mammoth Wash management area.
    The ISDRA is the most popular off-highway vehicle (OHV) area in the 
southwest United States, with a specified major focus to ensure that 
OHV recreation opportunities are continuously available while 
responding to increased need for protection of plant and animal species 
in the Dunes (BLM 2003, pp. 1-3). As a result of a settlement agreement 
reached in 2000, the BLM agreed to establish 5 interim closure areas 
within the Dunes, temporarily closing these areas to OHV recreation 
(see Index Map in ``Rule Promulgation'' section). These temporary 
closures are currently still in place.
    The Dunes are in one of the driest and hottest regions in the 
United States. The rainfall is often described as scattered or patchy 
with amounts differing from place to place and from year to year, with 
areas to the northwest being generally dryer than those to the 
southeast (Willoughby 2001, p. 20). Romspert and Burk (1979, p. 11) 
reported average yearly rainfall during the period 1941-1970 was 2.6 in 
(66 millimeters (mm)). Average yearly rainfall between 1997 and 2002 at 
seven weather stations in the vicinity of the Dunes ranged from a low 
of 0.1 in (3.3 mm) during the 2001-2002 growing season to a high of 6.1 
in (155 mm) in the 1997-1998 growing season (Willoughby 2004, p.13). 
Average yearly rainfall between 2002 and 2006 at two weather stations 
on the Dunes ranged from a low of 0.2 in (5.3 mm) during the 2005-2006 
growing season to a high of 4.8 in (122 mm) during the 2004-2005 
growing season (Willoughby 2006, p.18).
    The distribution and abundance of Astragalus magdalenae var. 
peirsonii has been recorded during several ongoing survey efforts. As 
discussed in the 2004 final critical habitat rule (69 FR 47330), the 
1977 dunes-wide survey for A. m. var. peirsonii and four other rare 
psammophytic (sand-loving) scrub species (WESTEC 1977) was considered 
the most extensive survey of the Dunes conducted at that time. The BLM 
conducted rare plant surveys for 5 consecutive years from 1998 through 
2002, generally repeating the methodology used by WESTEC in its 1977 
survey (Willoughby 2001, p. iii). Raw data from the 2001 and 2002 
surveys were provided by the BLM to the Service for use in the 
development of the 2004 final critical habitat rule. However, a written 
report of the 2001 and 2002 surveys (Willoughby 2004) was completed in 
October 2004, after the publication of the August 4, 2004, final 
critical habitat rule. As also discussed in the 2004 final critical 
habitat rule, Phillips and Kennedy (2002, 2003) conducted surveys for 
A. m. var. peirsonii from 2001 through 2003. Since publication of the 
2004 final critical habitat rule, both the BLM (Willoughby 2005a, 
2005b, 2006) and Phillips and Kennedy (2004, 2005, 2006) continued to 
conduct annual surveys for this species through 2006. Table 1 below 
summarizes all of the various survey efforts, including the number of 
sampling points or transects and the effective area surveyed by each 
effort as well as the estimated population by the survey methodology 
and the actual number of plants counted.

       Table 1.--Comparison of Survey Data Collected for Astragalus magdalenae var. peirsonii in the Dunes; Data Taken From 13 Unpublished Reports
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                                                                               Number of plants      Estimated          Number of        Effective area
                    Year                                 Surveyor                  counted           population          samples              *ac)
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1977........................................  WESTEC........................                N/A                N/A              1,611             53,000
1998........................................  BLM \1\.......................              5,064                N/A                542             53,000
1999........................................  BLM \1\.......................                942                N/A                542             53,000
2000........................................  BLM \1\.......................                 86                N/A                542             53,000
2001........................................  BLM \1\.......................              5,930                N/A                542             53,000
2002........................................  BLM \1\.......................              2,297                N/A                542             53,000
2001........................................  Phillips \2\..................         \3\ 71,926                N/A                127           ~ 35,000
2001........................................  Phillips \2\..................             30,771                N/A                 25                138
2003........................................  Phillips \2\..................             33,202                N/A                 25                138
2005........................................  Phillips \2\..................             77,922        \4\ 173,328                 25                138
2006........................................  Phillips \2\..................              1,233          \4\ 2,035                 25                138
2004........................................  BLM \1\.......................             25,798            286,374             37,169             53,000
2005........................................  BLM \1\.......................            739,805          1,831,076            123,488             53,000
2006........................................  BLM \1\.......................                761             83,451                775             53,000
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\1\ BLM reports cited as Willoughby.
\2\ Phillips reports cited as Phillips et al. or Phillips and Kennedy.
\3\ Reconnaissance of unspecified area.
\4\ Estimated population for 60 specific sample sites.

    Since different methodologies and survey effort were used by the 
BLM as compared to Phillips and Kennedy, it is difficult to compare the 
annual estimates of dunes-wide species abundance reported from the two

[[Page 8750]]

different survey efforts. Early surveys conducted by WESTEC in 1977 
(WESTEC 1977) and by BLM from 1998 through 2002 (Willoughby 2001, 2004) 
incorporated a methodology [whereby plants encountered along transects 
were qualitatively indexed to an abundance value] and represented in 
quadrants measuring 0.45 mi (0.72 km) on each side. Analysis of these 
coarse, dune-wide surveys could only provide relative comparisons of 
mean abundance values between years. In 2004, the BLM embarked on a new 
sampling methodology that sampled a larger portion of the Dunes in 
greater detail (Willoughby 2005a, pp. 1-5). Unlike previous surveys, 
the recent BLM surveys were scientifically and statistically designed 
to estimate the standing Astragalus magdalenae var. peirsonii 
population (Willoughby 2005a, 2005b, 2006). Data were compiled in 
adjacent 82 foot x 82 foot (ft) (25 meters x 25 meters (m)) cells along 
2.5-3.1 mi (4-5 km) transects covering the full length of the Dunes, 
and all micro-habitats were sampled along each transect (Willoughby 
2005b, pp. 1-3). Within these 82 ft x 82 ft (25 m x 25 m) cells, 
surveyors noted: The total number of plants; age class of plants; 
number of seedlings; number of flowering versus non-flowering plants; 
number of plants exhibiting damage from OHVs; and the number of plants 
showing damage from other sources (Willoughby 2005b, p. 3). The recent 
BLM surveys also increased the number of sample transects to 135 in 
2004, and to 510 for the spring 2005 surveys (Willoughby 2005b). In 
2006, the BLM used a randomized sample of 2005 known occupied cells 
during the very dry winter and spring of 2006 to yield a population 
estimate for the 2005-2006 survey year (Willoughby 2006, p. 6). Both 
the WESTEC and BLM surveys effectively covered the entire Dunes and 
thus encompassed all management areas containing Astragalus magdalenae 
var. peirsonii (Willoughby 2005a, p. 2).
    By comparison, Phillips et al. (2001, p. 6) counted individual 
Astragalus magdalenae var. peirsonii from 127 specific locations 
covering an unspecified area of about 35,000 ac (14,165 ha) (Phillips 
and Kennedy 2002, Appendix A). Phillips and Kennedy (2002, 2003, 2004, 
2005, 2006) then established 25 monitoring sites from these 127 
locations for their multi-year survey effort, which had an effective 
area of about 138 ac (56 ha).
    The disparity between these three survey methods and the data 
collected makes it difficult to assess status and trends of the 
Astragalus magdalenae var. peirsonii population. However, we consider 
the surveys conducted by BLM to be the most extensive and precise 
effort to determine overall population abundance and distribution for 
this species because this effort effectively covered the entire Dunes 
and thus encompassed all management areas containing Astragalus 
magdalenae var. peirsonii, and because the amount of data gathered in 
2005 was the result of an exceptionally good rainfall year and 
extraordinary monitoring effort. We agree with the BLM that the 2005 
survey effort represents the best estimate to date of distribution and 
abundance of the species on the Dunes (Willoughby 2006, p. v). The 
2005-2006 survey year was an exceptionally dry year, with no A. m. var. 
peirsonii germination reported (Willoughby 2006, p. vi).
    While direct comparison of annual estimates of Astragalus 
magdalenae var. peirsonii abundance reported by BLM and Phillips and 
Kennedy is difficult due to differences in survey methodologies and 
effort used by the surveyors, some comparisons can be made which 
illustrate the wide variation in numbers of standing individuals found 
in any given year and in any given area of the Dunes depending on 
abundance and distribution of rainfall. If we compare BLM data from 
1998 with BLM 2000 data, and compare Phillips and Kennedy's 2001 data 
with their 2003 data, we see the annual variation in species abundance 
at occupied sites. Along the same series of west to east transects, BLM 
counted a total of 5,064 plants in 1998, a heavy rainfall year, and 86 
plants in 2000, a low rainfall year (Willoughby 2004, p. 36). The 
record of steep decline of the cohort counted by Phillips et al. in 
2001 was tracked by Phillips and Kennedy (2002, p. 18), who reported 
that only 26 percent of the plants seen in spring of 2001 were present 
in late 2001. Phillips and Kennedy (2003, p. 12) also reported that 
only 0.26 percent of the plants counted in spring 2001 survived to 
spring 2003.
    This wide variation in numbers of standing individuals is also 
evident when comparing results of the BLM's dunes-wide surveys 
conducted in 2004, 2005, and 2006. In 2004, estimated dunes-wide 
abundance was 286,374 plants (5.5 plants/ac (13.5/ha)) (Willoughby 
2005a, p. 37). In 2005, estimated dunes-wide abundance was 1,831,076 
plants (39.8 plants/ac (86/ha)) (Willoughby 2005b, pp. 9-11). In 2006, 
estimated dunes-wide abundance was 83,451 plants (1.6 plants/ac (3.9/
ha)) (Willoughby 2006, p. vi). Differences in densities (plants per 
acre) are likely due to differences in rainfall between years. An above 
average amount of rainfall was recorded during the 2004-2005 growing 
season, resulting in the greatest abundance of plants to date, while 
the 2005-2006 growing season was considered an exceptionally dry year, 
resulting in zero reported germination. Density in 2004 may have also 
been decreased due to higher average monthly maximum temperatures 
recorded during the survey period, potentially impacting germination 
(Willoughby 2005a, p. 12).
    In any given year, Astragalus magdalenae var. peirsonii may be 
present as standing plants, as a ``soil seed bank'' in the sand dunes, 
or as plants persisting as perennial root crowns in the sand dunes. 
During any given year, the suitable habitat for A. m. var. peirsonii 
may be occupied by various combinations of these three life history 
phases. The dynamics of dune morphology, local rainfall patterns and 
amounts, and the spatial distribution of the soil seed bank contribute 
to the patchy or mosaic nature of the distribution of standing plants 
of A. m. var. peirsonii. As discussed above, local rainfall patterns 
and amounts are likely to cause shifts in the proportions of these 
three life history phases.
    This species was federally listed as threatened due to threats of 
increasing habitat loss from OHV use and associated recreational 
development, destruction of plants, and lack of protection afforded the 
plant under State law (63 FR 53596). Impacts to individual plants and 
their habitat associated with OHV activities and recreation development 
continue to be the primary threat to this species in the United States. 
Please refer to the final listing rule (63 FR 53596) for a detailed 
discussion of the threats to the species and to the ``Special 
Management Considerations or Protection'' section of this final revised 
rule for a more detailed discussion on threats to this species' 
habitat.

Previous Federal Actions

    On August 4, 2004, we published a final rule designating 
approximately 21,863 ac (8,848 ha) of critical habitat for Astragalus 
magdalenae var. peirsonii in Imperial County, California (69 FR 47330). 
Following publication of the final rule, a lawsuit was filed against 
the BLM and the Service alleging, among other violations related to 
protection of A. m. var. peirsonii and desert tortoise (Gopherus 
agassizii), that the Service did not properly consider and weigh the 
benefits and costs associated with designating critical habitat for A. 
m. var. peirsonii. The lawsuit was filed by the Center for Biological 
Diversity, Sierra

[[Page 8751]]

Club, Public Employees for Environmental Responsibility, and Desert 
Survivors (Center for Biological Diversity et al., Plaintiffs v. Bureau 
of Land Management et al., Defendants, and American Sand Association, 
et al., Defendant Intervenors, case 3:03-cv-02509). In a September 25, 
2006, order and injunction regarding final relief, the court ordered 
the Service to submit for publication a new final critical habitat rule 
to the Federal Register no later than February 1, 2008. In addition, 
the Court ordered that the August 4, 2004, final critical habitat 
designation remain in full regulatory force and effect pending 
completion of the new final critical habitat rule for A. m. var. 
peirsonii. When effective, this final revised rule replaces the August 
4, 2004, final critical habitat designation.
    On July 27, 2007 (72 FR 41258), we published a notice in the 
Federal Register announcing: (1) The availability of the proposed rule 
to designate approximately 16,108 ac (6,519 ha) of land within Imperial 
County, California, as revised critical habitat for Astragalus 
magdalenae var. peirsonii; (2) the availability of the draft economic 
analysis (DEA) of the proposed rule to revise critical habitat for 
public review; and (3) the scheduling of public hearings on the 
proposed critical habitat designation and DEA. Public hearings were 
conducted on August 23, 2007, in Carlsbad, California. The public 
comment period closed on September 25, 2007.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed rule 
to revise critical habitat for Astragalus magdalenae var. peirsonii and 
the associated DEA published on July 27, 2007 (72 FR 41258). During the 
comment period, we requested all interested parties to submit comments 
or information related to the proposed revision to the critical habitat 
designation, including, but not limited to, the following: Unit 
boundaries, species occurrence information and distribution, land use 
designations that may affect critical habitat, potential economic 
effects of the proposed designation, benefits associated with critical 
habitat designation, areas considered but not proposed for designation 
and the associated rationale for the non-inclusion or exclusion of 
these areas, and methods used to designate critical habitat.
    We also contacted appropriate Federal and State agencies, County 
governments, elected officials, and other interested parties through 
telephone calls, letters, and news releases sent by facsimile, U.S. 
mail, or electronic mail, and invited them to comment on the proposed 
revised rule and the associated DEA. We also invited public comment 
through the publication of a notice in the San Diego Union-Tribune. In 
addition, we held two public hearings on August 23, 2007, from 1 p.m. 
to 3 p.m. and from 6 p.m. to 8 p.m. in Carlsbad, California. 
Transcripts of these hearings are available for inspection (see 
ADDRESSES).
    During the comment period that opened on July 27, 2007, and closed 
on September 25, 2007, we received 61 comments directly addressing the 
proposed revised critical habitat designation and the DEA: 3 from peer 
reviewers, 1 from a Federal agency (BLM), and 57 from organizations or 
individuals. We received no comments from State or local agencies.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited expert opinions from seven knowledgeable 
individuals with scientific expertise that included familiarity with 
the species, the geographic region in which the species occurs, and 
conservation biology principles. We received responses from three of 
the peer reviewers. The peer reviewers were generally supportive of the 
designation of critical habitat. Most, however, recommended adjusting 
the proposed critical habitat boundaries and altering management 
strategies to provide for better coexistence of OHV recreation and 
Astragalus magdalenae var. peirsonii survival and recovery.
    We reviewed all comments received from the peer reviewers and the 
public for substantive issues and new information regarding critical 
habitat for Astragalus magdalenae var. peirsonii. All comments received 
were grouped into general issue categories relating to the proposed 
rule to revise critical habitat for A. m. var. peirsonii and are 
addressed in the following summary and incorporated into this final 
revised rule as appropriate.

Peer Reviewer Comments

    Comment 1: One peer reviewer suggested the entire Dunes system 
should be designated critical habitat since Astragalus magdalenae var. 
peirsonii grows throughout the dune system.
    Our Response: The Act defines critical habitat as the specific 
areas within the geographical area occupied by the species at the time 
it is listed on which are found those physical or biological features 
(I) essential to the conservation of the species and (II) which may 
require special management considerations or protection; and specific 
areas outside the geographical area occupied by the species at the time 
it is listed upon a determination by the Secretary that such areas are 
essential for the conservation of the species. We believe that our 
proposed and final designations accurately describe all areas meeting 
the definition of critical habitat for Astragalus magdalenae var. 
peirsonii. Application of the of the criteria described below (see 
``Criteria Used to Identify Critical Habitat'' section of the proposed 
rule and this final rule) captures areas supporting the physical and 
biological features that are essential to the conservation of the 
species, identified as the primary constituent elements (PCEs) laid out 
in the appropriate quantity and spatial arrangement essential for the 
conservation of the species. Thus, not all areas supporting the 
identified PCEs will meet the definition of critical habitat. We did 
not designate the entire dune system as critical habitat because we do 
not believe that the entire dune system meets the definition of 
critical habitat for Astragalus magdalenae var. peirsonii. Areas 
outside the proposed critical habitat designation will continue to be 
subject to conservation actions implemented under section 7(a)(1) of 
the Act and regulatory protections afforded by the section 7(a)(2) 
jeopardy standard and the prohibitions of section 9 of the Act.
    Comment 2: According to one peer reviewer, the most populous site 
in the Dunes in terms of number of plants found during a 2004-05 survey 
was along the International Boundary in the southern portion of Subunit 
4 (Phillips and Kennedy 2005). The third and fourth most populous sites 
were also in this subunit. Because these sites have been systematically 
excluded from BLM surveys, the commenter recommended that a Geographic 
Information System (GIS) specialist should determine if these three 
sites are included in the proposed critical habitat, and if not, adjust 
the boundaries to include them.
    Our Response: After reviewing the GIS data, we have determined that 
the survey sites referenced by Phillips and Kennedy 2005 are within the 
boundaries of the critical habitat designation.
    Comment 3: One reviewer questioned the necessity of including 92 
percent of the Astragalus magdalenae var. peirsonii populations within 
the critical habitat designation to maintain species viability. The 
reviewer further suggested that using a lower percentage of

[[Page 8752]]

captured populations may allow for more intervening areas between 
designated areas of critical habitat, where pass-through routes for 
OHVs could be placed.
    Our Response: Including 92 percent of the Astragalus magdalenae 
var. peirsonii population observed in 2005 was not one of the criteria 
of the proposed critical habitat designation; rather, it was a result 
of applying the methodology outlined in the proposed rule. OHV usage 
patterns were not taken into consideration when proposing revisions to 
critical habitat for A. m. var. peirsonii. The most appropriate 
locations for OHV pass-through routes may be determined by the BLM as 
part of their management plan.
    Comment 4: One reviewer expressed concern that designating all of 
Subunit 3A and the northern portion of Subunit 3B as critical habitat 
could result in greater impacts to Astragalus magdalenae var. peirsonii 
than are now taking place. The reviewer stated that those areas 
received little relative OHV use from 1998 through 2001 (Willoughby 
2001), and predicted the formation of ``sand highways,'' as currently 
observed around existing closure stakes, which may increase disturbance 
if critical habitat designation results in closures to OHV use in those 
areas.
    Our Response: We will work with the BLM to avoid or minimize these 
potential impacts during future section 7 consultations, as 
appropriate, and recommend the BLM take these potential impacts into 
consideration when developing their management plans.
    Comment 5: One peer reviewer stated that according to McGrann et 
al. (2005), moderate to high levels of OHV use can significantly 
decrease the abundance of Astragalus magdalenae var. peirsonii 
seedlings, while low levels of OHV use does not significantly affect A. 
m. var. peirsonii. The reviewer suggested that the entire dune system 
could be opened to OHV use if a management scheme were put in place 
reducing the number of OHV recreationists using the Dunes to low levels 
that would not significantly affect A. m. var. peirsonii.
    Our Response: On Federal land, it is the responsibility of the 
appropriate land management agency to develop and implement resource 
management plans. Comments and suggestions regarding resource 
management in the Dunes should be directed to the BLM. As part of 
developing and implementing a recovery strategy for a listed species, 
we do consider site-specific management strategies important to the 
conservation of the species and we also work with land owners, 
managers, researchers, and others to develop and implement them, as 
appropriate, as part of the recovery process.
    Comment 6: One peer reviewer stated that reproductive success of 
Astragalus magdalenae var. peirsonii is not dependent upon the presence 
of flowering plants between bowls (hollows among the dunes), and that 
no basis was presented in the proposed rule for the assumption that 
areas between bowls are important for maintaining gene flow within the 
population. According to this reviewer, the growing season of 2004 to 
2005 was the first season since 2000 that showed plants growing in any 
quantity on ridges and other features between the bowls that constitute 
the main habitat of A. m. var. peirsonii. The reviewer was concerned 
whether pass-through routes for OHVs could be designated within 
critical habitat in areas that are normally unoccupied without impeding 
gene flow.
    Our Response: The most appropriate locations for OHV pass-through 
routes through designated critical habitat may be determined by the BLM 
as part of their management plan if deemed necessary. We do not concur 
with the reviewer's suggestion that because areas between bowls are not 
consistently occupied by Astragalus magdalenae var. peirsonii plants, 
they may be less important for maintaining gene flow within the 
population. Gene flow is influenced by the movement of pollinators and 
the wind dispersal of fruit and seeds. It is not necessary that 
Astragalus magdalenae var. peirsonii plants be present in an area for 
that area to be important to gene flow.
    Comment 7: One peer reviewer suggested consideration should be 
given to associated habitat and taxa necessary for the accumulation of 
nitrogen-containing compounds when designating critical habitat for 
Astragalus magdalenae var. peirsonii. The presence of detritivores such 
as termites, herbivores, and woody debris, such as that from Croton 
wigginsii and Eriogonum deserticola, should be present in sufficient 
quantities to allow for the continued support of this species in areas 
that have been designated critical habitat when sufficient rainfall is 
available.
    Our Response: The psammophytic scrub plant community that supports 
detritivores and other biota, of which Astragalus magdalenae var. 
peirsonii is a component, is included as a PCE in the rule. The need to 
preserve this community was considered in our analysis. While we did 
not specifically analyze the role detritivores play in providing 
mineral resources to A. m. var. peirsonii, we believe that the 
associated psammophytic scrub plant community within designated 
critical habitat should support detritivores in sufficient quantities 
to provide the necessary mineral resources for A. m. var. peirsonii.
    Comment 8: One peer reviewer pointed out that given the constant 
shifting of the Dunes, the Dunes are relatively non-static; therefore, 
critical habitat designated in 2007 may not be as viable in 2015 
because the depth of available Astragalus magdalenae var. peirsonii 
seed and the aspect of bowls may change over time. The reviewer 
suggested that we allow for the dynamic nature of the dune landscape by 
designating critical habitat units that are ``oriented slightly NW to 
SE from proposed positions'' in some instances.
    Our Response: Astragalus magdalenae var. peirsonii is adapted to 
the non-static nature of the Dunes. If the aspect of bowls changes over 
time without changing geographic position, they likely would remain 
within critical habitat. Critical habitat can also be revised if new 
information indicates changes in the distribution of essential features 
have occurred (this current rule is such a revision).
    Comment 9: One peer reviewer commented that Phillips and Kennedy 
(2005) documented plants germinating and flowering in the first growing 
season twice over the past seven years. The reviewer suggested we cite 
this data-based conclusion rather than the Porter et al. (2005) 
hypothesis on page 41259 of the proposed rule (72 FR 41258: July 27, 
2007).
    Our Response: Phillips and Kennedy (2005) were cited in the 
proposed critical habitat (see 72 FR 41259, third column, second full 
paragraph, first sentence). We believe that both citations are 
relevant.
    Comment 10: One reviewer noted that reference to the existence of a 
seed bank for Astragalus magdalenae var. peirsonii is made on numerous 
occasions in the proposed rule, but Phillips and Kennedy's (2002, 2006) 
two reports detailing studies of the seed bank are not cited. The 
reviewer suggested that these reports either be acknowledged, or a 
reason presented for their exclusion.
    Our Response: Although the two studies in question do provide 
valuable information regarding the seed bank of Astragalus magdalenae 
var. peirsonii, we determined that it was not appropriate to cite 
either study in relation to the specific statements referenced in the 
rule.
    Comment 11: One reviewer recommended that the Service form an

[[Page 8753]]

advisory committee comprised of representatives from affected agencies 
and advocacy groups with the goal of developing a critical habitat 
designation.
    Our Response: Through our rulemaking process, we have solicited 
input from affected agencies and advocacy groups via our request for 
comments on the proposed critical habitat designation and during the 
public hearings. All comments received have been considered and 
incorporated into the final critical habitat rule as appropriate. 
Therefore, we believe we have appropriately sought and considered the 
opinions of all interested parties during the promulgation of this 
revised rule.
    Comment 12: All three peer reviewers offered recommendations 
intended to improve management of the Dunes to allow coexistence of 
Astragalus magdalenae var. peirsonii and OHV use in coordination with 
the critical habitat designation, or to alter the proposed critical 
habitat designation based on dune management considerations.
    Our Response: On Federal land, it is the responsibility of the 
appropriate land management agency to develop and implement resource 
management plans. Comments and suggestions regarding resource 
management in the Dunes should be directed to the BLM. As part of 
developing and implementing a recovery strategy for a listed species, 
we do consider site-specific management strategies important to the 
conservation of the species and work with landowners, managers, 
researchers, and others to develop and implement such strategies, as 
appropriate, as part of the recovery process.

Public Comments

    Comment 13: A number of commenters asserted that scientific 
evidence supports the hypothesis that OHV activity does not harm 
Astragalus magdalenae var. peirsonii populations. Some commenters cited 
personal observations that the habitat has changed little during their 
history of visitation and that OHV users deliberately avoid A. m. var. 
peirsonii because of damage to tires.
    Our Response: The commenters did not provide any additional 
scientific information or data to support the hypothesis that OHV 
activity does not harm Astragalus magdalenae var. peirsonii 
populations. The best scientific information suggests that OHV use can 
damage A. m. var. peirsonii habitat (Groom et al. 2007). Groom et al. 
(2007, p.132) demonstrated that OHV impact reduced the survival of 
small A. m. var. peirsonii individuals by 33 percent over a 3 month 
period. Further, this study indicated that within the Dunes, areas open 
to OHV use supported 4 to 5 times fewer plants than areas closed to OHV 
use (Groom et al. 2007, p. 130). However, in the relatively short time 
frame that A. m. var. peirsonii has been monitored, populations of the 
plant appear to persist in areas of OHV use, perhaps because OHV users 
tend to avoid A. m. var. peirsonii as asserted by the commenter. 
Further monitoring may show whether this persistence will continue over 
time and which factors, including avoidance, influence A. m. var. 
peirsonii persistence.
    Comment 14: One commenter asserted the proposed revised rule did 
not include all the best available science. Specifically the commenter 
asserted the proposed revised rule did not: (1) Incorporate data from 
monitoring other than those collected during 2004-2005; in particular 
no data was considered from the highest precipitation season (1997-
1998); (2) take into consideration that more conservative design and 
implementation of conservation plans are required for species whose 
numbers are not stable (cited Noss et al. 1997); (3) take into 
consideration the hypothesis that genetically similar plants may not be 
able to produce viable seeds, and therefore populations must maintain a 
``large number of individuals'' (cited Porter et al. 2005); and (4) 
take into consideration the transient or shifting nature of Astragalus 
magdalenae var. peirsonii habitat distribution. The commenter asserted 
the Dunes are documented to migrate in a southeasterly direction 16 to 
66 ft (5 to 20 m) per year (cited Porter et al. 2005); therefore, the 
proposed critical habitat may not include the primary constituent 
elements (PCEs) in 100 years.
    Our Response: Regarding the commenter's first assertion, we did 
take into consideration the 1998 data, but found the 2004 to 2005 data 
to be more appropriate for use in our critical habitat model. For 
example, the 2005 study more intensively sampled areas found to be 
occupied in the 1998 study, and distribution information had a finer 
geographic resolution (provided more spatial detail). Also, average 
annual rainfall during both sample seasons was approximately double the 
annual average in the ISDRA (which includes approximately 167,000 ac 
(67,582.50 ha) of the Dunes), and when data from all 1997-2005 surveys 
are overlaid on proposed revisions to critical habitat, all higher 
density distribution areas within sample sites appear to be captured. 
It is not likely that final revisions to critical habitat would have 
been altered by inclusion of data from years other than 2005. In the 
proposed revision to critical habitat (72 FR 41258; July 27, 2007), we 
cited Willoughby's 2001 report with 1997 to 1998 survey data 5 times; 
in the background section regarding variability in annual abundance of 
above-ground plants, rainfall variability, and data availability, we 
specifically stated that this information was considered in our 
methodology. Regarding the commenter's second assertion, although we do 
consider conservation and recovery standards when designing critical 
habitat, critical habitat is not a conservation plan. The design and 
implementation of conservation initiatives will be addressed by those 
charged with management of Dunes lands (e.g., the BLM). Regarding the 
commenter's third assertion, although Porter et al. (2005) did conclude 
that a ``large number of individuals'' must be maintained because of 
the need for high genetic diversity at the self-incompatibility loci 
(location of genes on the DNA strand), he did not give any quantitative 
estimate of what was meant by ``large.'' Porter also concluded that the 
number of individuals present in the ISDRA is ``quite high,'' and the 
number of individuals is not as important as the genetic diversity of 
individuals present. No information provided by Porter (2005) indicates 
that areas not included in proposed revisions to critical habitat (72 
FR 41258; July 27, 2007) contain individuals with higher genetic 
diversity, or that densities we used as criteria for including areas in 
the critical habitat designation were too low. Regarding the 
commenter's fourth assertion, future recovery plans, habitat 
conservation plans, or other species conservation planning efforts will 
take into consideration changes in the distribution of essential 
features, if new information indicates such changes have occurred. 
Critical habitat can also be revised if new information indicates 
changes in the distribution of critical habitat have occurred (this 
current rule is such a revision). We do not believe it is prudent to 
predict dune position 100 years into the future, especially considering 
changes in temperatures, precipitation amounts, wind patterns, and 
extreme weather, including droughts, heavy precipitation, and climate 
change predicted globally (IPCC 2007, pp. 8-9) and in southern 
California (Field et al. p. 52; Seager et al. 2007, p. 1181).
    Comment 15: One commenter alleged the proposed revised rule is 
flawed because it does not include all occupied habitat, and does not 
include any unoccupied habitat. Specifically: (1) No

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scientific justification was given for the use of 100 plants per 2.5-ac 
(1-ha) density as a criterion for inclusion; (2) the 328 ft (100 m) 
distance between 2.5 ac (1 ha) core areas does not take into 
consideration the distance Astragalus magdalenae var. peirsonii 
inflated seedpods can disperse; (3) the area required to assure species 
persistence and recovery depends on numerous other attributes besides 
density (cited Burgman et al. 2001); and (4) recent science indicates 
occupied habitat containing populations on the periphery of the range 
of the species is essential to long-term species survival, especially 
with regard to preservation of local genetic diversity (cited Leppig 
and White 2006, Gapare et al. 2005, Channell and Lomolino 2000, Lammi 
et al. 1999) and global climate change (cited Safriel et al. 1994).
    Our Response: Regarding the commenter's first statement, we are not 
aware of any published scientific information providing quantified 
density requirements for this species, and no such information was 
provided by the commenter. As discussed in the ``Summary of Changes 
from the Previously Designated Critical Habitat and 2007 Proposed 
Revised Rule'' section below, the reference to 100 plants/ha was an 
error in the proposed rule, and the actual density used was 480 plants/
ha. Since no established density criteria exist for Astragalus 
magdalenae var. peirsonii, we chose the 480 plants/ha based on the 
qualitative observation that it captured the majority of large clusters 
of standing plants and the belief that these densities are likely to be 
correlated with high-quality habitat characteristics (e.g., suitable 
dune morphology, soil moisture) and high-density seed banks. We also 
note that this density only applied to cells selected in the first 
criterion as a starting point for inclusion, and was not exclusive of 
adjacent, potentially lower density areas. We subsequently expanded 
each cell to a size 16 times greater. The first criterion captured 
approximately half of the 2005 observed population, while after all 
subsequent criteria were applied, approximately 92 percent had been 
captured.
    Regarding the commenter's second statement, we agree the potential 
distance seeds can be dispersed is greater than 328 ft (100 m); 
however, we aggregated the 2.5-ac (1-ha) core areas within 328 ft (100 
m) of each other to maintain unoccupied space for wind dispersal of 
seeds between occupied dune bowls. This 328 ft (100 m) distance is a 
Dunes-wide approximation of the average distance between aggregated 
core areas.
    Regarding specific comments 3 and 4, these comments, and all 
scientific papers cited by the commenter, are based on the density or 
importance of distinct biological populations on the periphery of a 
species' range and do not apply to Astragalus magdalenae var. peirsonii 
in the context of this rule. The entire range of A. m. var. peirsonii 
within the ISDRA appears to function as a single population with a 
semi-continuous distribution (includes movement areas, a semi-
continuous distribution of standing plants) composed of spatially 
clustered, but not isolated, ``colonies'' (Porter 2005, p. 14, 21). 
Even colonies not connected by habitat for adult growth (for example, 
separated by a highway) would not be independent biological populations 
unless the non-growth habitat area significantly reduced genetic 
exchange among colonies. Although Porter (2005, p. 17) sampled 30 
``populations,'' the word population in that context refers to 
statistical, not biological, populations.
    Comment 16: One commenter asserted that the proposed rule is flawed 
because it fails to address all primary constituent elements (PCEs). 
Specifically: (1) Habitat for the white-faced digger bee (Habropoda 
pallida, the most common pollinator), the digger wasp, or the European 
honeybee should have been included, because pollination is required in 
order for Astragalus magdalenae var. peirsonii to set viable seeds 
(cited Porter 2005); and (2) by removing core areas over 1,312 ft (400 
m) from higher density core areas, the proposal fails to include areas 
containing the PCE ``intervening areas for gene flow and connectivity 
within the population.'' The commenter asserted that basic conservation 
biology principles dictate the need for large connected areas of 
habitat that support essential ecological functions such as pollinator 
habitat and seed dispersal (cited Noss et al. 1997). The commenter 
stated that although data on forage distances for native pollinators 
are not available, studies of other solitary bees found a foraging 
distance ranged from 492 to 1,969 ft (150 to 600 m) (cited Gathmann and 
Tscharntke 2002) and the median foraging range of the European honeybee 
is 3.8 mi (6.1 km) (cited Beekman and Ratnieks 2000).
    Our Response: Primary constituent element number 2 as defined in 
the proposed revised rule states that habitat for insect pollinators, 
particularly the white-faced digger bee, is required for reproduction 
of Astragalus magdalenae var. peirsonii, and we believe the proposed 
revised critical habitat incorporates sufficient habitat to support 
these pollinator species. The information regarding pollinator movement 
distances appears to suggest that all areas within those distances from 
an occurrence of A. m. var. peirsonii should be included in critical 
habitat. We considered this approach, but concluded that doing so would 
include large areas of unoccupied habitat that are not essential to the 
conservation of A. m. var. peirsonii, because based on the best 
scientific information available to us, sufficient habitat exists to 
support pollinators within the designated critical habitat units. We 
agree that basic conservation biology principles support the value of 
connected areas of habitat of suitable size for supporting essential 
ecological functions such as pollinator habitat and seed dispersal. We 
believe this final revised critical habitat designation constitutes 
sufficient areas of connected habitat to support seed dispersal and 
pollination, and therefore does not violate basic conservation biology 
principles.
    Comment 17: One commenter expressed the belief that the Service's 
biological methodology was sound and the criteria were appropriate. 
They stated the 16,106 ac (6,518 ha) of proposed critical habitat is 
``more than adequate'' to protect Astragalus magdalenae var. peirsonii 
and ensure species' recovery.
    Our Response: We appreciate the comment in support of this revised 
designation of critical habitat for Astragalus magdalenae var. 
peirsonii.
    Comment 18: One commenter expressed the opinion that recreational 
use does not appear to negatively affect pollination of Astragalus 
magdalenae var. peirsonii by white-faced digger bees.
    Our Response: Please see response to comment 13 above. Because the 
commenter did not provide any additional information or data to support 
their opinion, we were unable to consider the validity of the claim.

Comments Related to Legal and Procedural Issues

    Comment 19: A number of commenters expressed concern regarding 
continued or additional closures of dune areas to OHV activity. In some 
cases it appeared they believed critical habitat designation was 
equivalent to closure, in other cases the designation would mandate 
additional or expanded closures, and in a few cases commenters were 
apparently confused regarding the reason for existing closures.
    Our Response: Current closures in the ISDRA are not a result of 
critical habitat designation; they are a result of legal

[[Page 8755]]

proceedings and administrative actions taken by the BLM that pre-date 
the current critical habitat designation (69 FR 47330; August 4, 2004). 
Critical habitat designation does not establish a refuge, wilderness 
reserve, preserve, or other conservation area. If a project that 
requires Federal funding, permitting, or authorization (such as 
management actions by the BLM) is planned in designated critical 
habitat, and the Federal agency (such as BLM) determines the project 
may affect Astragalus magdalenae var. peirsonii or its critical 
habitat, the agency responsible for providing the funding or permit is 
required, in consultation with the Service, to ensure that the project 
will not jeopardize the continued existence of the species or adversely 
modify critical habitat. We assume that BLM will take the critical 
habitat designation into consideration during their revised ISDRA 
planning process, as well as other relevant factors. Areas within a 
critical habitat designation, particularly occupied areas (all in this 
case), are already subject to regulatory protections afforded by the 
section 7(a)(2) jeopardy standard of the Act.
    Comment 20: A number of commenters suggested management strategies 
to reduce the threat of OHV impacts to Astragalus magdalenae var. 
peirsonii.
    Our Response: Please see response to comment 5.
    Comment 21: One commenter asserted that because the proposed 
critical habitat did not include all recently occupied habitats, it 
does not meet the recovery standard of critical habitat designation. 
The commenter asserted that species recovery standards must be met by 
critical habitat designations, not just species extinction thresholds 
needed to meet the jeopardy standard.
    Our Response: Please see response to comment 1. We do not concur 
with the commenter's assertion that all recently occupied habitats need 
to be designated as critical habitat in order to achieve recovery of 
the species.
    Comment 22: One commenter stated they were opposed to any 
exclusions of essential habitat based on coverage by management plans. 
They stated that all essential habitat needs special management because 
it is subject to impacts from motorized vehicle recreation, even in 
wilderness areas where closure violations occur, and the District Court 
in Arizona found that existence of a management plan is proof that an 
area qualifies as critical habitat (cited Center for Biological 
Diversity, et al. v. Norton, 240 F. Supp. 2d 1090, 1099).
    Our Response: No exclusions based on management plans were proposed 
or made in this final rule.

Comments From Other Federal Agencies

    Comment 23: One commenter stated that Fall weather does not have to 
be wetter than average to trigger germination; all that is required is 
a single rainfall event sufficient to induce germination (approximately 
1 in (2.5 cm)), so Fall rainfall could still be below the Fall average. 
The commenter recommended we alter the assertion in 72 FR 41259, column 
3, paragraph 2, last sentence (``* * * based on our current 
understanding of the taxon's life history, sufficient rain in 
conjunction with cool temperatures and wetter-than-average Fall weather 
appears to trigger germination events'') to reflect this point in the 
final rule.
    Our Response: By ``germination event,'' we meant germination of a 
large number of Astragalus magdalenae var. peirsonii seeds at the same 
time. Thus, the statement in the proposed revised critical habitat rule 
is correct. While it may not require wetter-than-average Fall weather 
to trigger germination of some Astragalus magdalenae var. peirsonii 
seeds, wetter-than-average Fall weather is likely necessary to produce 
a mass germination event.
    Comment 24: One commenter stated that there is no evidence that 
wind-driven sand provides the primary mechanism for seed scarification. 
The commenter stated that seeds usually have their hard seed coats 
rendered permeable by high summer temperatures or fire. In citing 
Baskin and Baskin (1989) as support for this statement, the commenter 
recommended we alter the statement in 72 FR 41263, column 3, paragraph 
3, sentence 1 of the proposed revised rule to reflect this point in the 
final rule.
    Our Response: It has been shown that wind-driven sand does scarify 
Astragalus magdalenae var. peirsonii seeds (Porter et al. 2005, p. 29); 
however, heat may be a contributing factor as well. We will consider 
this information in future management recommendations.
    Comment 25: One commenter requested that we clarify the use of the 
word ``higher'' on 72 FR 41268 of the proposed rule which reads, 
``Habitat within these subunits [Subunits 1A and 1B in the Mammoth Wash 
management area] contains a higher density of standing plants and is 
likely to support a large seed bank based on our analysis of BLM's 2004 
survey data in addition to containing the PCEs required by the 
species.''
    Our Response: We clarified this statement in this final rule to 
indicate that the habitat within Subunits 1A and 1B contained a higher 
density of standing Astragalus magdalenae var. peirsonii plants than 
areas adjacent to and outside of Subunits 1A and 1B based on our 
analysis of BLM's 2005 survey data.

Comments Related to the Draft Economic Analysis

Geographic Scope of Analysis

    Comment 26: Several commenters believe that the Draft Economic 
Analysis (DEA) underestimates impacts because it fails to consider 
impacts outside of Imperial and Yuma Counties. Commenters noted that 
most visitors to the ISDRA do not come from the local area. Another 
commenter asserted that the DEA overstates regional economic impacts 
because there is no evidence that people visiting the ISDRA are 
purchasing their groceries or a significant portion of their ORV 
equipment and supplies in Imperial or Yuma County.
    One commenter also provided additional information on the 
geographic and economic scope of the sand-recreation industry. 
Specifically, the commenter provided a summary by location of 488 
advertisers that support the American Sand Association to demonstrate 
that only a small proportion of these businesses and associations are 
located in Imperial and Yuma Counties. This commenter also provided 
anecdotal evidence to support the fact that businesses outside of 
Imperial and Yuma Counties are likely to be affected by the proposed 
critical habitat. This commenter also noted that there are ``practical 
and sound theoretical reasons'' for limiting the geographic scope of 
the regional economic analysis to Imperial and Yuma Counties.
    Our Response: In the DEA, as in the 2004 Economic Analysis, the 
focus of the analysis is on the two counties that are expected to bear 
the greatest impact of any reduced visitation by OHV enthusiasts to the 
ISDRA, relative to overall economic activity in these counties (see 
Section 3.3.2 of the DEA). Thus, any change in sales resulting from 
changes in ISDRA visitation would be expected to have a 
disproportionate effect on these economies. This study area was chosen 
based on information in the 2003 Final Environmental Impact Study 
(FEIS) of the BLM's Recreation Area Management Plan (RAMP) and 
discussion with the American Sand Association (ASA), Imperial County 
Board of Supervisors, and the Brawley

[[Page 8756]]

Chamber of Commerce. Additional text related to this issue has been 
added to the Final Economic Analysis (FEA) in Section 3.3.3.

Expenditure Estimates

    Comment 27: Several commenters believe the per-vehicle trip 
expenditure estimate is understated because it does not include 
equipment purchases. Various commenters believe that the DEA failed to 
account for investment in high-value dune recreation equipment and 
specialty parts. Several commenters stated that if additional 
restrictions are imposed on duning activity as a result of the proposed 
critical habitat, this equipment will lose its value and no 
reinvestment in such assets will occur. One commenter asserted that the 
potential loss of revenue for the sheet metal fabrication industry will 
go into the billions of dollars, and two commenters provided 
information regarding the 2006 Sand Sports Super Show as support for 
the magnitude of the industry likely to be affected.
    Our Response: Potential impacts on OHV sales are difficult to 
assess, as no data exist to model where OHV enthusiasts from the 
greater California and Arizona region purchase vehicles and other 
equipment, or how these purchases will change in response to reduced 
access within the ISDRA. As discussed in Section 3.3.2 of the DEA, 
given this uncertainty, the analysis applies a range of estimated 
average per-vehicle trip expenditures. The estimated range of 
expenditures ($279-$544 in 2007 dollars) represents average 
expenditures within the study area, and incorporates information from 
OHV user groups, including the ASA and the Off Road Business 
Association (OBRA).
    The analysis recognizes the possibility that capital expenditures 
on OHV equipment could be impacted by limitations on OHV activity 
within the ISDRA. As shown in Exhibit 3-6 of the DEA, a portion (36 
percent to 38 percent) of the expenditures per vehicle trip falls into 
the category of ``OHV Equipment Supplies and Services.'' The 
apportionment of the estimated expenditures per vehicle trip was based 
on a survey of OHV users conducted for the California Department of 
State Parks and Recreation (CADSPR). In a recent survey of ISDRA 
visitors (Haas/Collins 2006), respondents indicated that approximately 
21 percent of expenditures were for ``Vehicle Maintenance and Repair.'' 
Although this figure is somewhat lower than the 36 to 38 percent 
applied in the DEA, the Haas/Collins expenditure category excludes 
expenditures on ``OHV equipment supplies.'' While overall cost 
estimates within the report remain unchanged, Section 3.2 of the FEA 
has been revised to provide additional information on investment in OHV 
equipment.
    Comment 28: Various commenters provided information on what they 
consider ``average'' per trip expenditures ranging from $350-$450. One 
commenter stated his group represents about $1 million per year at the 
ISDRA, not including travel and food. Another commenter states Exhibit 
3-6 on page 3-16 of the DEA underestimates the cost of fuel per trip.
    Our Response: As discussed in Section 3.3.2, the DEA was based on 
the best available information on expenditures by visitors to the 
ISDRA. The estimated range of expenditures per vehicle trip to the 
ISDRA ($279-$544 in 2007 dollars) represents average expenditures 
within the study area (defined as Imperial and Yuma Counties), based on 
information from OHV user groups, including the ASA and OBRA. The per-
trip expenditure information provided in public comment falls within 
the range of expenditures estimated in the DEA. As explained in Exhibit 
3-6, OHV-related expenditure estimates were allocated to categories 
based on information from a report published by the CADSPR Off-Highway 
Vehicle Motor Vehicle Recreation Division. This study was considered 
the best available information for purposes of understanding the likely 
types of expenditures made by OHV recreators at the ISDRA.

Information Sources

    Comment 29: Various commenters were concerned that the authors of 
the DEA did not contact OHV business owners. The commenters believe 
that only the actual business owners can provide the necessary 
information to develop a meaningful economic impact assessment.
    Our Response: As described in Section 1.4 of the DEA, in developing 
the DEA, the authors of the study contacted various organizations that 
represent OHV-related businesses, including the ASA and OBRA, as well 
as local chambers of commerce. The expenditure estimates were based on 
input from OHV user groups, as detailed in Exhibit 3-6 of the DEA. 
Given timing and budget constraints, it was not possible for the study 
authors revising the economic analysis to contact each OHV-related 
business in the region.
    Comment 30: Commenters question the accuracy of the DEA because 
data from a recent study of visitors to the ISDRA was not included. 
Specifically they cite the fact that the DEA apportions 15 percent of 
regional expenditures to Yuma County while the new data suggests proper 
allocation for Yuma County is 25 to 30 percent. One commenter asserted 
that the Haas/Collins study supports the level of expenditures 
estimated in the DEA under upper bound assumptions.
    Our Response: As discussed in Section 3.3.2, the DEA was based on 
the best available information on expenditures by visitors to the ISDRA 
at the time the report was produced. The estimated range of 
expenditures per vehicle trip to the ISDRA ($279-$544 in 2007 dollars) 
represents average expenditures within the study area, based on 
information from OHV user groups, including the ASA and OBRA.
    While the Haas/Collins studies provide useful information about 
visitors to the ISDRA, we are reluctant to rely on the Haas/Collins 
expenditure information in the DEA due to: (1) Poor wording of the key 
expenditure question in the survey, which is likely to have caused 
confusion regarding the allocation of a portion of total expenditures 
to the local area (e.g., for the line item ``Total Dollars Spent on 
your Most Recent Visit to ISDRA,'' it is unclear whether the respondent 
was supposed to enter the dollar amount spent for the entire trip 
(including at home and enroute), or only within 50 mi (80.4 km) of the 
ISDRA); (2) the exclusion of all day trip visitors from the survey 
(which may result in an upward bias in the expenditure estimates); and 
(3) the exclusion of all visitors staying in hotels or RV parks outside 
the ISDRA (the direction of bias that might result from this limitation 
in the sample frame are unknown). Nonetheless, we note that the Haas/
Collins studies indicate average expenditures within 50 mi (80.4 km) of 
the ISDRA of $438 (when recalculated to represent an average of overall 
expenditures for all visitors surveyed), which is only slightly higher 
than the midpoint of our expenditure range for Yuma and Imperial 
Counties ($411.50).
    The DEA apportions 15 percent of regional expenditures to Yuma 
County and 85 percent to Imperial County, based on information in the 
ISDRA RAMP (2003) and Business Plan (2003). The Haas/Collins studies do 
not provide reliable information regarding visitors' allocation of 
expenditures between Imperial and Yuma counties. The survey asks 
respondents to indicate the community through which they typically 
drive to visit the ISDRA (Question 5) and how frequently they stop in 
this community (Question 6), but respondents are not asked to

[[Page 8757]]

estimate expenditures in each community or county.
    Comment 31: One commenter asserted that the upper bound welfare 
impact estimate of $85.9 million is understated because the $140 per 
``lost'' trip figure is substantially lower than the expenditures 
estimated in the Haas/Collins studies. Another commenter also 
questioned the use of the $140 figure and compares this figure to his 
estimated expenditures of approximately $350 to $400 per trip.
    Our Response: The $140-per-vehicle-trip figure referred to by these 
commenters represents a consumer surplus per trip, used to calculate 
economic efficiency effects stemming from the proposed designation. The 
$140 figure is not comparable to visitor expenditures per trip, such as 
those measured by the Haas/Collins studies. As discussed in the text 
box on page ES-5 of the FEA, efficiency effects describe net changes in 
national social welfare, based upon the idea that overall social 
welfare can be maximized by using resources in ways that yield the 
greatest benefits to society. In this case, the $140 per vehicle trip 
figure represents the consumer surplus to recreators that results from 
an OHV vehicle trip to the ISDRA. Section 1.2 of the FEA provides 
additional information on the difference between efficiency effects and 
distributional impacts.

Methodology for Estimating Visitation Impacts

    Comment 32: Several commenters asserted that closures within one 
management area may result in a reduction in the effective 
accessibility of other areas, affecting visitation levels beyond what 
is accounted for in the DEA. Specifically, the BLM noted that 
designating critical habitat within the Ogilby management area could 
reduce OHV use in both the Ogilby and Dune Buggy Flats management 
areas. BLM believes the DEA should include impacts to visitation 
associated with the Dune Buggy Flats management area, despite the fact 
that no critical habitat was proposed in this management area.
    Our Response: As discussed in Section 3.5 of the FEA, whether OHV 
access in the ISDRA will be limited in the future as a result of the 
critical habitat designation will depend on the outcome of future 
management decisions and consultations. Given this uncertainty, the 
Service has defined a range of potential changes to BLM's management 
that could be necessary to avoid an adverse modification finding in a 
future consultation, in addition to actions needed to avoid a jeopardy 
finding. Specifically, as described in the text box on page ES-4, the 
Service has indicated that the critical habitat portion of three 
management areas (Gecko, Mammoth Wash, and Ogilby) may be closed to OHV 
use to avoid an adverse modification finding.
    Due to the nature of the visitation data available for the ISDRA 
(e.g., counts of vehicles are limited to ISDRA entry points), 
information is not available to determine, with specificity, which 
visitors or subset of visitors use the areas proposed for critical 
habitat designation. Recognizing this data limitation, and in the 
absence of a site-specific model to predict visitor behavior, the 
analysis reflects the uncertainty inherent in these economic impact 
estimates by bounding the potential impacts as discussed in Section 3.3 
of the FEA. Though visitation at management areas where no critical 
habitat is proposed may be affected by closures, the Service does not 
believe it is possible to predict specific visitor behavior at the 
ISDRA in response to potential closures of portions of the proposed 
critical habitat, such that resulting potential costs can be 
quantified, given existing data as discussed in Section 3.3.3 of the 
FEA.
    Comment 33: One commenter believes that the DEA fails to utilize 
accepted analytical methods to deal with risk and uncertainty about the 
actual closure plan. The commenter further provided text from U.S. Army 
Corps of Engineers guidance for addressing risk and uncertainty in 
water resources planning efforts, as an example of the type of method 
that could have been applied in the DEA to address the uncertainty 
underlying potential closures in the ISDRA resulting from the proposed 
critical habitat designation.
    Our Response: As discussed in Section 3, paragraph 57 of the DEA, 
it is not possible, using existing data, to predict what the nature or 
scope of restrictions on OHV use will be, or to model OHV recreators' 
behavior in response to these future management actions. While there 
are a number of accepted approaches to deal with uncertainties, this 
analysis bounds the potential economic impacts using a lower- and 
upper-bound assessment framework. The method referred to by the 
commenter is most useful when detailed information is available 
regarding the likelihood and risks associated with each option 
identified. In this case, this type of information was not available. 
The FEA does, however, identify and discuss the uncertainty factors 
underlying the analysis in Section 3.3.3.
    Technical reviewers of the methodology applied in the DEA concluded 
that this approach is appropriate given the uncertainty associated with 
future policy decisions, and the lack of detailed behavioral data 
regarding OHV enthusiasts' use of the ISDRA.
    Comment 34: BLM commented that if closures were necessary it would 
not be able to close only the critical habitat areas, but would likely 
have to expand the area closed to make boundaries that would be 
enforceable, thus potentially increasing the expected impacts on 
visitors. For example, BLM stated ``a vehicle closure surrounding 
proposed critical habitat Subunits 2A and 2B in the Gecko MA (with some 
overlap into the Glamis MA) could encompass as much as 9,500 ac (3,845 
ha), more than twice the 3,983 ac (1,612 ha) in those two critical 
habitat subunits.''
    Our Response: As discussed in Section 3.3.3 of the DEA, neither the 
Service nor BLM is able to forecast with certainty whether critical 
habitat designation will result in closures of portions of the ISDRA. 
BLM has indicated that it will undertake to revise its RAMP after final 
designation of critical habitat; this revision will be a lengthy 
process, during which BLM will consider various management options, and 
the ultimate outcome of this planning process and future section 7 
consultation is unclear. Therefore, the most reasonable assumption 
based on the best available information was to model the upper bound as 
a scenario in which critical habitat designation could potentially 
result in closure of the critical habitat portions of the Gecko, 
Mammoth Wash, and Ogilby management areas.
    Because the EA indicates the upper bound impacts are linearly 
related to the acreage of potential closures (see FEA, p. 3-27), 
doubling the acreage potentially closed would double the estimated 
upper bound impacts. However, we again note that specific management 
actions taken by BLM with regard to OHV use closures in the ISDRA are 
uncertain and will depend on the outcome of management planning 
activities and section 7 consultation.
    Comment 35: Several commenters maintained that the DEA should have 
taken into account the relative attractiveness of the proposed critical 
habitat from an OHV use standpoint. These commenters asserted that the 
assumption of uniform use throughout the management areas is not 
justified. Commenters suggested that the economic analysis should 
incorporate information regarding the area of active

[[Page 8758]]

dunes that are proposed to be part of critical habitat compared to the 
total area of active dunes within a particular management area, as 
opposed to comparing the area of critical habitat to the total area of 
the entire management area. In particular, BLM stated ``the vegetation 
type, active dune/psammophytic scrub, contains the active dunes that 
are the focus of the recreational use in the Dunes. Use in the other 
vegetation types of the Dunes is incidental to the use in the active 
dunes.'' BLM also provided a map of the ISDRA illustrating where each 
vegetation type occurs in the ISDRA as part of its comments.
    Our Response: It is not possible, using existing data, to predict 
the percentage of OHV recreators who visit areas of the ISDRA that are 
proposed for critical habitat designation. Lacking detailed data and 
user patterns, the DEA modeled visitation based on BLM vehicle counts 
and assumes an equitable distribution of visitation within each 
management area. Research was conducted to determine if OHV track 
density data or other information was available to better understand 
OHV use patterns in the Dunes to predict impacts to visitation. Through 
discussions with the BLM, it was determined that available data did not 
provide the necessary information to give an accurate picture of OHV 
use throughout the ISDRA or the number of visitors using the proposed 
critical habitat areas. Thus, the analysis relied on the best available 
information on visitation to the ISDRA--the BLM vehicle counts by 
management area.
    In its comment letter, BLM provided new information regarding the 
distribution of OHV use within the ISDRA. The economic analysis has 
been refined based on this information, which suggests that OHV 
recreation occurs primarily within the active dune/psammophytic scrub 
vegetation type. In particular, BLM indicated that the active dune 
vegetation type represents approximately 72 percent of Gecko management 
area, 59 percent of the Ogilby management area, and 86 percent of the 
Mammoth Wash management area. The critical habitat falls completely 
within the active dune vegetation type. Limiting the baseline OHV 
recreation area to this vegetation type results in an increase in the 
estimated upper bound welfare impacts from 16 to 70 percent, depending 
on the management area. Specifically, assuming that the active dune/
psammophytic scrub vegetation type is the focus for OHV recreation, the 
high-end upper bound welfare impacts resulting from a reduction in OHV 
use have been revised as follows: Impacts for Gecko increase from $81.3 
million to $113 million (undiscounted); impacts for Ogilby increase 
from $4.52 million to $7.60 million (undiscounted); and impacts for 
Mammoth Wash increase from $68,600 to $79,400 (undiscounted). At the 
upper bound, regional economic impacts increase from $24.2 million to 
$34.0 million in total output and from 529 jobs to 743 jobs, at the 
high end. While these revisions change the absolute level of the 
impacts at the high end, the ranking of the management areas remains 
unchanged (e.g., Gecko retains the highest impacts by far at $113 
million undiscounted). The revised results are presented in the FEA in 
detail.
    Comment 36: To support the argument that certain areas should be 
excluded from the critical habitat designation, in its comment letter, 
BLM provided ``corrected'' impact estimates. BLM attempted to adjust 
the results presented in the DEA to reflect only the vegetation type 
that BLM believes is actively used for OHV recreation rather than the 
entire management area, and included impacts to vehicle trips 
associated with Dune Buggy Flats and Glamis management areas for which 
the DEA does not anticipate any impact.
    Specifically, for Subunits 2A and 2B, located in the Gecko and 
Glamis management areas, the commenter suggested that upper bound 
welfare impacts should be adjusted to $121.8 million (as opposed to the 
$81.3 million estimated in the DEA). Similarly, for Subunits 2A and 2B, 
the commenter suggested that the regional economic impacts should be 
$34.3 million and 751 jobs (as opposed to the estimated $22.9 million 
and 501 jobs).
    Our Response: As addressed above, BLM has raised several issues 
with regard to the method for estimating lost vehicle trips that could 
potentially result from the proposed critical habitat designation. The 
economic analysis has been revised based on information indicating that 
OHV recreation occurs primarily in the active dune/psammophytic scrub 
vegetation type. As illustrated in the FEA, the revised results are 
roughly similar to what BLM has calculated. Note, however, while these 
revisions increase the absolute level of impacts at the upper bound, 
the relative ranking of areas by level of impact remains the same.
    Comment 37: One commenter noted that the DEA does not recognize 
that the limiting factor in visitation is the availability of camping 
spaces, and the area has already reached or exceeded the reasonable 
carrying capacity. The commenter similarly asserted that the need to 
limit air quality deterioration should be taken into account as a 
factor in the capacity of the ISDRA in forecasting visitation growth in 
the economic analysis. The commenter stated that weekends are already 
filled to capacity.
    Our Response: As discussed in Section 3.5, the baseline visitation 
forecast in the DEA is based on information from the FEIS for the ISDRA 
RAMP (2003). As noted by the commenter, the FEIS discusses the fact 
that visitor supply is constrained by availability of camping supply, 
and that on some holiday weekends, visitation exceeds this supply. 
However, BLM noted that the total annualized visitor supply is expected 
to be adequate, and that management actions would be expected to 
temporally redistribute some of the visitation to the ISDRA. As 
discussed in the DEA in Section 3.5, the carrying capacity is 
determined by BLM based on the Recreation Opportunity Spectrum (ROS) 
class, which defines the level of infrastructure and camping capacity 
within each management area. Further, as discussed in the RAMP FEIS (p. 
62), one of the management actions under the preferred alternative 
includes implementing actions to mitigate for contributions to the non-
attainment due to activities at the ISDRA as requested by the Imperial 
County Air Pollution Control District (ICAPCD). In 2006, BLM, in 
cooperation with the ICAPCD, prepared a Dust Control Plan outlining 
dust control measures at the ISDRA. These measures include watering of 
high OHV use areas during high-use times and maintenance of wilderness 
areas and paved roads in the ISDRA. Thus, campground supply and air 
quality deterioration have already been incorporated into the baseline 
visitation assumptions in the DEA because they were considered in the 
development of the FEIS.
    Comment 38: One commenter asserted that the DEA relies on the 
flawed assumption that ``the closures now in place lead to a decrease 
in visitation in every year since 2001 and will continue to do so into 
the future.''
    Our Response: The approach to estimating impacts to visitation 
resulting from the critical habitat designation is explained in detail 
in Section 3.5 of the FEA. As discussed in this section and in Section 
1.3.1, the baseline for the analysis of post-designation impacts 
assumes that current closures will be lifted after critical habitat is 
finalized, and that with or without critical habitat, some form of 
limited or managed use or complete closure of the Adaptive Management 
Area would be likely.

[[Page 8759]]

    Comment 39: A commenter noted that estimated visitation impacts 
forecasted in the DEA erroneously begin the estimate of ``visitation 
with critical habitat'' at approximately 150,000 vehicle trips below 
current levels in 2008.
    Our Response: The commenter is correct. In the DEA, Figure 3-2 
included incorrect information for the ``with critical habitat'' 
vehicle trips. Figure 3-2 has been corrected in the FEA. This error 
does not affect the impact estimates or results of the analysis; 
visitation figures throughout the remainder of the DEA are correct.
    Comment 40: One commenter asserted that Exhibit 3-5 underestimates 
the number of trips made per year by visitors to the ISDRA and that 
recent surveys conducted by the ASA have indicated most visitors go 
seven times a year.
    Our Response: The most recent survey of visitors to the ISDRA (Haas 
2006) finds that ISDRA users visit approximately six times per year. 
The DEA estimate of three trips per year was based on available 
information (ISDRA Business Plan (2003), confirmed with various OHV 
user groups including ASA and ORBA). Exhibit 3-5 has been updated to 
include the information from the Haas (2006) report. Note that the data 
in Exhibit 3-5 is provided for informational purposes, and these 
revisions do not affect the results of the analysis.

Miscellaneous Issues

    Comment 41: The BLM commented that Mammoth Wash management area is 
the only area that now provides the semi-primitive motorized recreation 
opportunity spectrum (ROS) category. BLM stated that designation of 
critical habitat in Subunits 1A and 1B could potentially result in BLM 
closing most of the sandy areas in the Mammoth Wash management area to 
OHV use to implement enforceable and manageable boundaries around the 
critical habitat. The commenter further maintained such a closure would 
result in the elimination of the semi-primitive motorized ROS category 
from the suite of recreational opportunities available to Dunes 
recreationists and would adversely affect the families that recreate in 
the area.
    Our Response: As discussed in Section 3.3 of the DEA, upper bound 
impacts are based on the assumption that a portion of visitors to this 
area may choose not to recreate at the ISDRA as a result of the 
proposed critical habitat designation. The DEA does not distinguish 
between different types of OHV recreation at the ISDRA, as information 
is not available to value different types of OHV recreation. To the 
extent that visitors to the Mammoth Wash management area value their 
experience at a higher or lower level than that anticipated in the DEA 
or have higher or lower than average expenditures per trip, the DEA may 
underestimate or overestimate the impacts of critical habitat 
designation. However, given available information, the analysis is not 
able to differentiate between types of OHV recreation at the ISDRA.
    Comment 42: A number of commenters stated that use restrictions, 
particularly in the Gecko Road and Dune Buggy Flats areas, will have a 
substantial drag on the local and regional economy, especially small 
businesses. Due to the likely economic impacts of increased management 
constraints that block dune access from the camping areas at Gecko Road 
and Dune Buggy Flats, commenters requested that the Secretary of the 
Interior (Secretary) exclude these areas (portions of Units 2 and 3), 
from the final critical habitat designation.
    Our Response: We have assessed the information provided by 
commenters and the revised economic analysis and believe that excluding 
a portion of the critical habitat is appropriate. See the ``Application 
of Section 4(b)(2) of the Act'' section for details.
    Comment 43: A commenter stated that the Secretary should identify 
key travel corridors (especially those with RS 2477 status) and exclude 
them from final critical habitat.
    Our Response: We did not identify any key travel corridors within 
the final revised critical habitat designation, and we are not aware of 
any R.S. 2477 corridors within the final revised critical habitat 
designation.

Benefits Transfer

    Comment 44: Several commenters noted that the welfare value per OHV 
vehicle trip applied in the economic analysis is inappropriate for 
benefits transfer, because the type of OHV use and the recreational 
experience valued in the two studies used for transfer are too 
dissimilar from OHV recreation at the ISDRA. Specifically, commenters 
cited differences between the ISDRA and the areas used for OHV 
recreation in North Carolina and Utah, and differences in the type of 
equipment used.
    In particular, one commenter stated that the DEA fails to justify 
its use of the benefit transfer method. This commenter further outlines 
specific criteria in the OMB guidelines that he believes the benefits 
transfer studies do not meet. In particular, the commenter believes the 
following criteria are not met: (1) The good, and the magnitude of 
change in that good, should be similar in the study and policy context; 
(2) the relevant characteristics of the study and policy contexts 
should be similar; (3) the availability of substitute resources should 
be similar; (4) if you can choose between transferring a function or a 
point estimate, you should transfer the entire demand function; (5) if 
the study examines a resource that is unique or has unique attributes, 
you should not transfer benefit estimates to value a different resource 
and vice versa; and, (6) the study should not apply an ex ante 
valuation estimate to an ex post policy context. If a policy yields 
significant change in the attributes of the good, you should not use 
the study estimates to value the change using benefits transfer.
    Our Response: Section 3.3.1 of the DEA provides the justification 
addressing how the benefits transfer applied in the analysis meets the 
criteria outlined in the OMB guidelines for use of benefits transfer. 
Each of the issues raised by the commenters is explicitly addressed in 
this section of the DEA. Specifically, paragraph 75 addresses how the 
benefits transfer conforms to OMB criteria, with respect to: the issue 
of the magnitude of change, the issues of uniqueness of the resources 
and availability of substitutes, and the criteria related to the 
valuation framework (e.g., ex ante versus ex post). In addition, 
paragraph 83 addresses the use of transfer of a single point estimate 
rather than an entire demand function.
    As described in paragraph 79, to estimate the consumer surplus 
value of an OHV trip, the analysis obtained relevant studies from the 
resource economics literature. In developing the 2004 DEA, two relevant 
studies were identified: Englin et al. (2003) and Jakus (2003). 
Technical review of the 2004 economic analysis supported the use of 
these two studies. During the development of the 2007 DEA, a more 
substantive literature review was conducted to identify relevant 
economic research regarding demand for OHV recreation sites; this 
review did not identify any other applicable studies.
    Ideally, the DEA would employ a California-or Arizona-based study 
to determine the welfare value of OHV recreation. However, no such 
study was identified. The estimates used were contemplated by technical 
reviewers and determined to be the most reasonable given currently 
available information. As discussed in Section 3.3.1 of the DEA, the 
Service believes

[[Page 8760]]

that this use of benefits transfer is justified under the OMB 
guidelines.
    Comment 45: One commenter questioned the use of the travel cost 
method in the studies applied in the benefits transfer. The commenter 
argued that this method systematically undervalues recreational 
resources. Specifically, the commenter discussed the issue that the 
travel cost method does not account for ``annual fixed costs'' or 
``investment in durable equipment.'' The commenter argued that because 
ISDRA users make fewer trips per year to the ISDRA than visitors to the 
Utah and North Carolina sites, a higher total cost must be allocated 
over fewer annual trips and that if these fixed costs were factored in, 
the marginal value per trip would be higher for ISDRA users.
    Our Response: Both of the studies (Englin et al. 2003 and Jakus 
2003) relied upon for the benefits transfer of a welfare value for an 
OHV trip are based on travel cost models. As discussed on page 3-16 of 
the FEA, to address uncertainty associated with value transfer from 
these two specific studies, the broader valuation literature on off-
road driving activities was reviewed. This review looked at values 
estimated using a variety of methodologies, including travel cost and 
contingent valuation methodologies, and found that other valuation 
studies of off-road driving activities estimate similar consumer 
surplus values. A recent literature search conducted by Dr. J.R. 
DeShazo of the University of California (included in Appendix E of the 
DEA) confirmed that these two studies were the most appropriate for 
benefits transfer in this case.
    The travel cost method is widely accepted for establishing the 
social welfare value of recreational activities. For example, the 
travel cost method is explicitly listed as an acceptable valuation 
methodology in the Department of the Interior's Natural Resource Damage 
Assessment Regulations (43 CFR 11 (1995), as amended at 61 FR 20609, 
May 7, 1996). These regulations state: ``The travel cost methodology 
may be used to determine a value for the use of a specific area.'' 
Similarly, the Environmental Protection Agency's Guidelines for 
Preparing Economic Analyses (EPA 240-R-00-003, September 2000) state 
``Recreation demand models, including the travel cost model, the random 
utility model (RUM), and other approaches, may be used to assess 
nonmarket benefits associated with recreation activities'' (p. 73).
    Comment 46: One commenter stated that the welfare impacts of up to 
$140 per trip are based on studies in areas that are not analogous to 
the Dunes. The commenter noted that the ``crowding'' effects that are 
discussed in the literature cited regarding a day at the beach are 
extrapolated to an assumed ``crowding'' in the OHV use areas on the 
Dunes. The commenter further suggested that the most significant factor 
affecting welfare value of OHV recreators at the ISDRA results from 
crowding of camping areas rather than the crowding in the OHV use area 
in the Dunes.
    Our Response: The DEA estimates upper bound welfare impacts based 
on the assumption that some people who would have made a trip to the 
ISDRA for OHV recreation will choose not to due to closure of portions 
of the proposed critical habitat, as discussed in Section 3.3. As 
detailed in Exhibit 3-7, the analysis does not account for quantified 
economic losses associated with a reduced quality of experience (i.e., 
consumer surplus) for users who continued to take OHV trips to the 
ISDRA under closures and experienced increased congestion or those 
users who visited less desirable substitute sites. While the literature 
review included in Appendix E does make reference to several studies 
that discuss the effects of crowding on the consumer surplus of 
beachgoers, these studies are not applied in the DEA.
    As discussed in paragraph 54, the DEA focuses on OHV recreation, as 
this is the primary type of recreation expected to be affected by the 
critical habitat designation. As acknowledged by the commenter, ``the 
proposed critical habitat has no effect on the limited number of 
campsites to accommodate RVs and cars--these are management issues of 
funding issues of BLM's that are wholly independent of the PMV critical 
habitat issue.''
    Although the welfare or social impacts to the recreational 
experience in the Dunes were not quantified in the economic analysis, 
we have considered such impacts in our analysis under section 4(b)(2) 
of the Act (see ``Application of Section 4(b)(2) of the Act'' section 
below for a detailed discussion).
    Comment 47: The estimates of welfare loss do not include losses 
that could be experienced by ``remaining'' recreators who ``could 
experience welfare losses due to impacts to the level of enjoyment 
derived from recreating in the ISDRA.''
    Our Response: This limitation of the analysis is explicitly noted 
in Exhibit 3-7 of the FEA. As discussed in paragraph 79, in the absence 
of a site-specific model to understand visitor behavior at the ISDRA, 
the analysis bounds impacts based on assumptions about visitor 
behavior. However, as noted above, we have considered such welfare and 
social impacts in our analysis under section 4(b)(2) of the Act (see 
``Application of Section 4(b)(2) of the Act'' section below for a 
detailed discussion).

Regional Economic Impact Analysis

    Comment 48: One commenter noted the limitations inherent of the use 
of the IMPLAN model. Specifically, the commenter stated that IMPLAN is 
a static model and does not incorporate any economic readjustment. The 
commenter pointed out that this readjustment may or may not occur 
fairly quickly. The commenter also noted that the IMPLAN analysis 
relies on 1998 data. The commenter remarked that, especially in Yuma, 
the local economy has undergone significant change since 1998 and that 
generally this would result in higher multipliers.
    Our Response: The DEA explicitly notes these limitations in Exhibit 
3-7, as acknowledged by the commenter. As discussed in the DEA, the 
IMPLAN model that is used to estimate regional economic impacts is a 
static model and does not account for the fact that the economy will 
adjust. IMPLAN measures the effects of a specific policy change at one 
point in time. Over the long run, the economic losses predicted by the 
model may be overstated as adjustments such as re-employment of 
displaced employees occurs.
    Also, as discussed in the DEA, the IMPLAN model that is used to 
estimate regional economic impacts relies on 1998 data. If significant 
changes have occurred in the structure of Imperial and Yuma County 
economies, the results may be sensitive to this assumption. The 
direction of any bias is unknown, but is likely to be small.
    Comment 49: One commenter noted that the DEA lacked a discussion of 
lost Federal and State income taxes that could result from this 
designation.
    Our Response: As shown in Exhibit C-3, at the upper bound, the DEA 
estimates potential regional economic impacts related to indirect 
business taxes ranging from $0.7 million to $1.7 million, depending on 
the visitation growth assumption.

Inclusion of Other Impacts/Benefits

    Comment 50: One commenter noted that the value of social benefits 
obtained through OHV recreation is not addressed in the report. 
Specifically, the commenter maintained that to the extent that families 
recreating at the

[[Page 8761]]

ISDRA may experience social benefits related to the ``community'' 
aspect of ISDRA recreation, including forming bonds and ``strengthening 
the family as a unit and children as individuals,'' these values should 
be addressed at least qualitatively in the report.
    Our Response: As the commenter noted, it is likely that OHV 
recreators do derive social benefits related to this activity that 
could be affected if their participation in OHV recreation declines. 
For example, a study cited in the FEIS of the ISDRA RAMP (Outdoor 
Recreation In America 1999: The Family and the Environment), provides 
support for the fact that Americans feel outdoor recreation strengthens 
the family as a unit, and families use outdoor recreation as a way to 
form bonds and transfer important family values to their children. To 
the extent that the values of social benefits are reflected in 
individual's and group's decisions to visit the ISDRA, and the values 
assigned to those trips, these values are included in the analysis. An 
assessment of these types of values would require an understanding of 
the activities that recreators at the ISDRA would choose to participate 
in, absent a trip to the ISDRA.
    While the impacts resulting from a loss of social benefits are not 
quantified in the report due to a lack of information on the value of 
these benefits, Section 3.3.3 of the FEA has been revised to describe 
this limitation of the analysis of welfare impacts, and we have 
considered such unquantified impacts in our analysis under section 
4(b)(2) of the Act (see ``Application of Section 4(b)(2) of the Act'' 
section below for a detailed discussion).
    Comment 51: One commenter noted that no basis was given for project 
modification costs for signage of $200,000 per year. The commenter 
further stated that these costs should not be attributed to the 
critical habitat designation but rather should be considered due to the 
failure of ORV users to comply with the law.
    Our Response: The basis for these costs is explained in footnote 
100 in the DEA, which states that the BLM estimates it could cost up to 
$200,000 per year to install and maintain signage for closures of the 
proposed critical habitat in Gecko, Mammoth Wash, and Ogilby. This 
estimate was based on BLM's recent experience with contractors' bids to 
install and maintain signage for the closures now in place. As 
discussed in Section 4.3.2, these costs would result from the 
designation of critical habitat, which could trigger additional 
restrictions on OHV use. The Service believes these costs are 
accurately attributed to the critical habitat designation, because 
regardless of individual OHV recreator's behaviors, the BLM would be 
likely to install and maintain signage around any closures as a matter 
of public information and outreach.
    Comment 52: One commenter asserted that the DEA should treat any 
increase in BLM costs (e.g., for signage--purchase of goods and 
services) as an offset to the regional economic impacts.
    Our Response: To estimate upper bound regional economic impacts, 
the DEA did not incorporate an increase in spending by the BLM as an 
offset to losses in regional expenditures due to a potential reduction 
in OHV use of the ISDRA. As discussed in Section 4.3.2, anticipated 
project modification costs per year include approximately $93,750 for 
additional law enforcement and $200,000 for implementing and 
maintaining signage. Specifically, total project modifications of 
$293,750 represent from 1 to 3 percent of the estimated $11.3 million 
to $24.3 million in impacts to direct expenditures as a result of 
potential reductions in OHV use due to critical habitat. Thus, while 
the analysis does not include these as an offset to regional economic 
impacts, the impact of including these as an offset would be small. 
Additional text has been added to Section 3.5.2 of the FEA to note this 
limitation of the upper bound estimates.
    Comment 53: One commenter stated that the Service should at a 
minimum quantify the benefits of protecting these lands as critical 
habitat to other rare, endemic species; the health benefits that may 
accrue if any reduction in ORV use improves air quality; and the cost 
savings to the local economy that may result from improved air quality 
including reducing health costs.
    Our Response: In the context of a critical habitat designation, the 
primary purpose of the rulemaking (i.e., the direct benefit) is to 
designate areas that contain the physical and biological features that 
are essential to the conservation of listed species. The designation of 
critical habitat may result in two distinct categories of benefits to 
society: (1) Use; and (2) nonuse benefits. Use benefits are simply the 
social benefits that accrue from the physical use of a resource. 
Visiting critical habitat to see endangered species in their natural 
habitat would be a primary example. Non-use benefits, in contrast, 
represent welfare gains from ``just knowing'' that a particular listed 
species' natural habitat is being specially managed for the survival 
and recovery of that species. Both use and non-use benefits may occur 
unaccompanied by any market transactions.
    A primary reason for conducting this economic analysis is to 
provide information regarding the economic impacts associated with a 
proposed critical habitat designation. Section 4(b)(2) of the Act 
requires the Secretary to designate critical habitat based on the best 
scientific data available after taking into consideration the economic 
impact, and any other relevant impact, of specifying any particular 
area as critical habitat. Economic impacts can be both positive and 
negative and, by definition, are observable through market 
transactions.
    Where data are available, this economic analysis attempts to 
recognize and measure the net economic impact of the proposed 
designation. For example, if the fencing of a species' habitat to 
restrict motor vehicles results in an increase in the number of 
individuals visiting the site for wildlife viewing, then the analysis 
would recognize the potential for a positive economic impact and 
attempt to quantify the effect (e.g., impacts that would be associated 
with an increase in tourism spending by wildlife viewers). In this 
particular instance, however, the economic analysis did not identify 
any credible estimates or measures of positive economic impacts that 
could offset some of the negative economic impacts.
    Under Executive Order 12866 (E.O. 12866), Office of Management and 
Budget (OMB) directs Federal agencies to provide an assessment of both 
the social costs and benefits of proposed regulatory actions. OMB's 
Circular A-4 distinguishes two types of economic benefits: Direct 
benefits and ancillary benefits. Ancillary benefits are defined as 
favorable impacts of a rulemaking that are typically unrelated, or 
secondary, to the statutory purpose of the rulemaking. In the context 
of critical habitat, the primary purpose of the rulemaking (i.e., the 
direct benefit) is the potential to enhance conservation of the 
species. The published economics literature has documented that social 
welfare benefits can result from the conservation of endangered and 
threatened species. In its guidance for implementing E.O. 12866, OMB 
acknowledges that it may not be feasible to monetize, or even quantify, 
the benefits of environmental regulations due to either an absence of 
defensible, relevant studies or a lack of resources on the implementing 
agency's part to conduct new research. Rather than rely on economic 
measures, the Service believes that the direct benefits of the proposed 
rule are best expressed in

[[Page 8762]]

biological terms that can be weighed against the expected cost impacts 
of the rulemaking.
    In evaluating the benefits of excluding versus including specific 
areas, we have accordingly considered the biological benefits that may 
occur to a species from designation (see ``Application of Section 
4(b)(2) of the Act'' section below), but these biological benefits are 
not addressed in the economic analysis.

Small Business Impacts

    Comment 54: One commenter stated that the assumptions applied to 
estimate the number of small businesses affected should have been 
refined, for example, by ``location (businesses closest to freeway 
exits, for example) and perhaps other factors as screening 
mechanisms.'' The commenter further suggested using the United Desert 
Gateway's Off-Highway Vehicle Recreation Guide 2007-2008 to estimate 
the number of local affected businesses to be 546 within Imperial and 
Yuma Counties.
    Our Response: As discussed in Section A.1.2, and illustrated in 
Exhibit A-2, the DEA includes information about the number of small 
businesses in OHV-related economic sectors in the study area. Due to 
data limitations, the analysis assumes that all of the small businesses 
in the region in the relevant categories are affected. Information is 
not available to determine how OHV recreators chose the businesses 
where they make expenditures.
    The economic analysis has been revised in the FEA to provide a 
discussion of the additional information provided by the commenter. As 
the commenter noted, the total number of small businesses estimated by 
the commenter (546) is somewhat less than the 827 small businesses 
estimated in the DEA. We are unclear how the businesses listed in the 
United Desert Gateway's guide were chosen for inclusion, or whether 
these are paid advertisers (and thus not a representative sample of 
businesses). The data source used in the DEA (a Dialog search of the 
Dun and Bradstreet database) is considered the best, most complete 
information available to determine the number of small businesses 
potentially affected by the designation.
    Comment 55: One commenter suggested that the base of small business 
types potentially affected should be expanded. The commenter noted that 
the Haas/Collins studies provide information regarding the breakdown of 
expenditures that provides a different picture of local expenditures 
than the categories of expenditures included in the DEA, which may have 
led the study authors to focus on additional types of small businesses 
in its analysis.
    Our Response: As discussed in Section 3.3.2 of the DEA, OHV-related 
expenditure estimates were allocated to categories based on information 
from a report published by the CADSPR Off-Highway Vehicle Motor Vehicle 
Recreation Division. This study was considered the best available 
information for purposes of understanding the likely types of 
expenditures made by OHV recreators at the ISDRA.
    While the Haas/Collins studies provide useful information about 
visitors to the ISDRA, we are reluctant to rely on the Haas/Collins 
expenditure information in the DEA due to (1) poor wording of the key 
expenditure question in the survey, which is likely to have caused 
confusion regarding the allocation of a portion of total expenditures 
to the local area; (2) the exclusion of all-day trip visitors from the 
survey; and (3) the exclusion of all visitors staying in hotels or RV 
parks outside the ISDRA.
    The categories of expenditures utilized in the Haas/Collins studies 
are somewhat different from those included in the CADSPR survey. 
However, 88 percent of the expenditures identified in the Haas/Collins 
studies fall into expenditure categories included in the DEA. Thus, if 
the DEA had relied on the categories of expenditures identified in the 
Haas/Collins studies, it is not clear that the NAICS codes that were 
used to identify the number of small businesses would have been 
different.

Summary of Changes From the Previously Designated Critical Habitat and 
2007 Proposed Revised Rule

    On August 4, 2004, we designated critical habitat for Astragalus 
magdalenae var. peirsonii comprising a total of 21,863 ac (8,848 ha) 
(69 FR 47330). On July 27, 2007 (72 FR 41258), we proposed to revise 
this designation to 16,108 ac (6,519 ha). This final revised critical 
habitat includes 12,105 ac (4,889 ha) in three units, after excluding 
Unit 2 (4,003 ac (1,620 ha)) under section 4(b)(2) of the Act (see 
``Application of Section 4(b)(2) of the Act'' section below for a 
detailed discussion). All of the land designated in this final revised 
rule was proposed as critical habitat in the 2007 proposed revised 
rule. These changes are summarized in Table 2.

  Table 2.--Summary of Changes Between the August 4, 2004, Critical Habitat Designation; the July 27, 2007 Proposed Revised Critical Habitat; and This
                                                                Final Revised Designation
--------------------------------------------------------------------------------------------------------------------------------------------------------
        2003 Proposed rule (68 FR 46143)           2004 Final rule (69 FR 47330)    2007 Proposed revised rule (72 FR       2008 Final revised rule
-----------------------------------------------------------------------------------               41258)              ----------------------------------
                                                                                   -----------------------------------
         Unit/subunit            Area (ac (ha))    Unit/subunit     Area (ac (ha))    Unit/subunit     Area (ac (ha))    Unit/subunit     Area (ac (ha))
--------------------------------------------------------------------------------------------------------------------------------------------------------
1A............................          16,510   1A..............          16,509   1A, 1B, 1C, 1D..           4,675   1A, 1B, 1C, 1D..           4,675
                                        (6,681)                            (6,681)                            (1,892)                            (1,892)
1B............................          34,333   1B..............       \1\ 5,355   2A, 2B, 3A, 3B,       \4\ 11,215   3A, 3B, 3C......       \6\ 7,212
                                       (13,894)                            (2,167)   3C.                      (4,539)                            (2,919)
1C............................           1,490   1C..............               0   4...............          \5\218   4...............             218
                                          (603)                            \2\ (0)                               (88)                               (88)
1D............................             447   1D..............               0   (none)..........           (none)  (none)..........           (none)
                                          (181)                            \3\ (0)
    Totals....................          52,780   ................          21,863   ................          16,108   ................          12,105
                                       (21,359)                            (8,848)                            (6,519)                            (4,899)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ 28,978 ac (11,727 ha) excluded from final designation under section 4(b)(2) of the Act.
\2\ Excluded from the final designation under section 4(b)(2) of the Act.
\3\ Removed from the final designation; not essential to the conservation of the species.
\4\ Includes 331 ac (134 ha) not included in the 2004 final designation.
\5\ Includes 75 ac (30 ha) not designated in the 2004 final designation.
\6\ 4,003 ac (1,620 ha) excluded from final designation under section 4(b)(2) of the Act.


[[Page 8763]]

    (1) The reduction in total area of identified essential habitat 
from the 2003 proposed critical habitat rule and the 2004 final 
critical habitat rule is primarily the result of a revised methodology 
to delineate critical habitat. The model used to delineate critical 
habitat boundaries in the 2003 proposed rule was based primarily on 
species survey data collected by the BLM from 1998 through 2002 along 
transects throughout the areas of the Dunes occupied by Astragalus 
magdalenae var. peirsonii. Each transect was composed of a series of 
grid squares measuring approximately 0.45 mi (0.72 km) on each side. In 
order to create the 2003 model, we used the coarse scale BLM survey 
data to extrapolate the values for four variables: (1) The presence or 
absence of standing plants of A. m. var. peirsonii; (2) the abundance 
of A. m. var. peirsonii; (3) the frequency of occurrence of A. m. var. 
peirsonii over the survey years; and (4) the number of associated rare 
psammophytic plant taxa present. These variables were scored, then 
standardized, and finally compiled. Because of the dynamic nature of 
the distribution of this plant, the cyclic nature of suitable climatic 
regimes, and the presence of a seed bank for A. m. var. peirsonii, grid 
squares where this plant was not found were included in critical 
habitat if they were contiguous with occupied grid squares (68 FR 
46143). The data used to create the 2003 model was considered the best 
available at that time and allowed us to identify areas known to be 
occupied by A. m. var. peirsonii as well as areas likely to be occupied 
based on the presence of suitable habitat (e.g., presence of associated 
psammophytic plant taxa).
    As discussed in the ``Background'' and ``Criteria Used to Identify 
Critical Habitat'' sections of this rule, the model used to delineate 
revised critical habitat boundaries in this revised rule is based on 
survey data collected by BLM in 2005 (Willoughby 2005b). The model used 
to delineate the revised critical habitat is based on data collected 
along a larger number of transects (510 versus 34) during a year of the 
highest recorded A. m. var. peirsonii abundance. These data are more 
robust than the data used in the 2003 model, primarily documenting 
occupancy over a larger area of the Dunes and at a finer spatial 
resolution (82 ft x 82 ft (25m x 25m) grid cells) during superior 
environmental conditions instead of on the presence of suitable habitat 
(e.g., the presence of associated rare psammophytic plant taxa), as was 
used in the 2003 model.
    In summary, we consider the model used to delineate revised 
critical habitat boundaries in this revised rule to more accurately 
depict the primary areas occupied by the species than the model used to 
delineate the 2003 proposed critical habitat boundaries. We determined 
that the identification of areas determined to meet the definition of 
critical habitat in the 2003 proposed designation was over-inclusive 
due to limited data and the rough spatial scale of the data. The 2005 
data now provide more specific and reliable information regarding 
abundance and distribution, allowing us to more precisely identify 
habitat essential to the conservation of the species associated with 
core population areas.
    (2) This final revised rule designates as critical habitat 5,560 ac 
(2,250 ha) of lands within Subunits 3A, 3B, 3C, and Unit 4 that were 
excluded from the 2004 final critical habitat designation under section 
4(b)(2) of the Act (see Table 2 above). In 2004, the Secretary 
determined that the economic benefits of excluding these lands 
outweighed the conservation benefits of including these lands in the 
designation due to the potential economic costs of the designation (69 
FR 47330). At this time, the Secretary has determined that the numerous 
benefits of excluding lands in Subunits 2A and 2B outweigh the 
conservation benefits of including these lands in this final revised 
designation (see ``Application of Section 4(b)(2) of the Act'' section 
below for a detailed discussion). Lands in Subunits 2A and 2B were also 
excluded from the 2004 final designation (69 FR 47330).
    (3) We are excluding from this final revised designation of 
critical habitat Unit 2 in the Gecko and Glamis Management Areas based 
on disproportionately high economic and social impacts associated with 
the designation of this unit as critical habitat relative to the 
overall designation. We believe that the benefits of excluding these 
specific areas from the designation outweigh the benefits of including 
the specific areas. We have also determined that the exclusion of these 
areas from the final designation of critical habitat will not result in 
the extinction of Astragalus magdalenae var. peirsonii. These 
exclusions are discussed in more detail in the ``Application of Section 
4(b)(2) of the Act'' section below.
    (4) A number of the comments we received suggested editorial 
changes and technical corrections to the ``Background'' and ``Unit 
Descriptions'' sections of the rule. These changes were recommended to 
improve clarity, to include additional information, and to correct a 
number of minor errors; they have been incorporated into this final 
revised rule where appropriate.
    (5) In the 2007 proposed revision to critical habitat ``Criteria 
Used to Identify Critical Habitat'' section, we erroneously cited 100 
plants per 2.5 ac (1 ha) or greater as the threshold for occupied cell 
inclusion in proposed critical habitat designation. Actually, occupied 
cells (defined in Willoughby (2005b) as 82 ft x 82 ft (25 m x 25 m) 
survey areas) with a plant density greater than 480 plants per 2.5 ac 
(1 ha) (30 plants per cell) were selected as core areas. About half of 
the plants observed in 2005 were in cells with a density more than or 
equal to 100 plants per 2.5 ac (1 ha). We used a density of 480 plants 
per ha since this captured the majority of the large clusters of 
standing plants. We believe these higher density core areas contain the 
physical and biological features essential to conservation of this 
species. Also, we erroneously reported that core areas were expanded to 
2.5 ac (1 ha). Actually, we expanded the 82 ft x 82 ft (25 m x 25 m) 
survey cells to 5 ac (2 ha) in size to capture the entire population 
and seed bank on a dune bowl, based on our field observations that most 
occupied dune bowls are approximately two ha in size. In addition, we 
have made changes to the ``Criteria Used to Identify Critical Habitat'' 
section to more clearly articulate the supporting rationale for using 
the identified model to delineate the areas meeting the definition of 
critical habitat. Please refer to the ``Criteria Used to Identify 
Critical Habitat'' section of this final rule for the complete 
description of the GIS model used.

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) which 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 the use 
of all methods and procedures that are necessary to bring any 
endangered species or threatened species to the point at which the 
measures provided

[[Page 8764]]

under the Act are no longer necessary. Such methods and procedures 
include, but are not limited to, all activities associated with 
scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against Federal agencies carrying out, funding, 
or authorizing the destruction or adverse modification of critical 
habitat. Section 7(a)(2) of the Act requires consultation on 
discretionary Federal actions that may affect 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 the government or 
public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
private landowners. Where a landowner requests federal agency funding 
or authorization for an action that may affect a listed species or 
critical habitat, the consultation requirements of section 7(a)(2) 
would apply, but even in the event of a destruction or adverse 
modification finding, the Federal action agency's and the applicant's 
obligation is not to restore or recover the species, but to implement 
reasonable and prudent alternatives to avoid destruction or adverse 
modification of critical habitat.
    For inclusion in a critical habitat designation, the habitat within 
the geographical area occupied by the species at the time of listing 
must contain the physical or biological features that are essential to 
the conservation of the species, and be included only if those features 
may require special management considerations or protection. 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., the primary constituent elements, as 
defined at 50 CFR 424.12(b)) in the appropriate quantity and spatial 
arrangement to support the physical or biological features essential to 
the conservation of the species.
    Under the Act, we can designate areas outside the geographical area 
occupied by the species at the time it is listed as critical habitat 
only when we determine that those areas are essential for the 
conservation of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality Guidelines 
provide criteria, establish procedures, and provide guidance to ensure 
that our decisions are based on the best scientific data available. 
They require our 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 we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information developed during the listing process for the species. 
Additional information sources may 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, unpublished materials, and expert 
opinion or personal knowledge.
    Habitat is often dynamic, and species may move from one area to 
another over time. Furthermore, we recognize that critical habitat 
designated at a particular point in time may not include all of the 
habitat areas that we may later determine are necessary for the 
recovery of the species. For these reasons, a critical habitat 
designation does not signal that habitat outside the designated area is 
unimportant or may not promote the recovery of the species.
    Areas that are important to the conservation of the species, but 
are outside the critical habitat designations, will continue to be 
subject to conservation actions we and other Federal agencies implement 
under section 7(a)(1) of the Act. Areas that support populations are 
also subject to the regulatory protections afforded by the section 
7(a)(2) jeopardy standard, as determined on the basis of the best 
available scientific information at the time of the agency 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 (HCPs), or other species 
conservation planning efforts if information available at the time of 
these planning efforts calls for a different outcome.

Primary Constituent Elements (PCEs)

    In accordance with section 3(5)(A)(i) of the Act and the 
regulations at 50 CFR 424.12, in determining which areas within the 
geographical area occupied at the time of listing to designate as 
critical habitat, we consider the physical or biological features 
essential to the conservation of the species based on its biological 
needs. We consider the physical or biological features that are 
essential to the conservation of the species to be the PCEs laid out in 
the appropriate quantity and spatial arrangement for the conservation 
of the species. The PCEs include, but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, and rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historic, geographical, and ecological 
distributions of a species.
    We derive the PCEs for Astragalus magdalenae var. peirsonii from 
its biological needs as described in the proposed revised critical 
habitat rule published in the Federal Register on July 27, 2007 (72 FR 
41258), and below.

Space for Individual and Population Growth, Including Sites for 
Germination, Reproduction, Seed Dispersal, Seed Bank, and Pollination

    Astragalus magdalenae var. peirsonii is found on active sand dunes 
between active faces (so-called slip faces) of the dunes, in bowls, or 
on semi-stabilized shallow slopes, facing the slip-faces of active 
dunes (Porter et al. 2005, p. 14). Active sand dunes provide the space 
needed for individual and population growth, including sites for 
germination, reproduction, seed dispersal, seed bank, and pollination 
of A. m. var. peirsonii. Active sand dunes are characterized by bowls 
(hollows among the dunes), swales (low areas), and slip faces (areas so 
steep that the loose sand naturally cascades downward) that run 
transverse to the primary ridge line. A. m. var. peirsonii generally 
occurs on west-facing slopes where there is relative

[[Page 8765]]

substrate stability from the floor of the dune basin to beyond the 
ridge; the greatest concentrations are generally above the middle of 
the slope (WESTEC 1977, p. 75; Porter et al. 2001, pp. 12-13).
    Sand movement, dune-building, and dune migration are likely 
determined by the wind regime (Norris and Norris 1961, p. 609). Winds 
from the northwest are prevalent in the winter, while in the summer the 
winds are from the southeast (Romspert and Burk 1979, p. 11). Muhs et 
al. (1995, pp. 43-44) found, during a study of the sand source for the 
Dunes, that dominant sand-moving winds are as follows: prevailing from 
the northwest all year at Indio, California; from the west or southwest 
all year at El Centro, California; and from the northwest in winter and 
from the southeast in summer at Yuma, Arizona. These winds are 
responsible for the local dispersal of seeds that either fall out of 
partly opened fruits or pods on the parent plant or that are released 
from fruits blown across the sand after falling from the parent plant 
(Phillips et al. 2001, p. 11).
    Seed germination patterns likely reflect the horizontal and 
vertical distribution of the seed bank in the shifting sand dunes 
(seeds will not effectively germinate if buried more than 3 in (8 cm) 
below the surface of the dune (Bowers 1996, p. 69)). As an adaptation 
to shifting sands and low soil moisture, this species has developed 
extremely long taproots (Barneby 1964, p. 862) that penetrate deeply to 
the moister sand and that anchor the plants in the shifting dunes. 
According to Porter et al. (2005, p. 28), seedlings may have roots 
descending only 4 in (10 cm), whereas older plants (e.g., 4 years or 
older) are likely to have roots ``many meters deep.'' Seeds buried in 
the sand function as the seed bank and allow for growth when suitable 
conditions, such as adequate rainfall, scarification, and suitable sand 
depths, are met.
    Wind-driven sand appears to provide the primary mechanism for seed 
scarification (e.g., scratching or chipping of outer cover). While 
seeds require no pre-germination treatment to induce germination, 
scarification appears to significantly increase germination success. 
Porter et al. (2005, p. 29) conducted germination trials of Astragalus 
magdalenae var. peirsonii seeds collected from the Dunes and found 
that, averaging over all germination trials, scarified seeds had 99.1 
percent germination, whereas unscarified seeds displayed 5.3 percent 
germination. In germination trials conducted by Romspert and Burk 
(1979, pp. 45-46), 92 percent or more seeds germinated within 29 days 
at temperatures of 77 [deg]F (25 [deg]C) or less, and no seeds 
germinated at temperatures of 86 [deg]F (30 [deg]C) or higher. This 
observation indicates that seeds on the Dunes likely germinate in the 
cooler months of the year. Porter et al. (2005, p. 29) identified the 
primary dormancy mechanism in A. m. var. peirsonii as the 
impermeability of the seed coat to water and demonstrated little loss 
of viability in seeds stored for 5 years.
    Seedlings may be generally present in suitable habitat throughout 
the Dunes, especially during above-normal precipitation years. In 
intervening dry years, plant numbers decrease as individuals die and 
are not replaced by new seedlings. Porter (et al. 2005, p. 35) 
estimated that a total- or near-total failure of seedling recruitment 
occurs 20 percent of the time (1 of every 5 years). This species likely 
depends on the production of seeds in the wetter years and the 
persistence of the seed bank from previous years to survive until 
appropriate conditions for germination reoccur.
    Astragalus magdalenae var. peirsonii occurs only in a vegetation 
community referred to as psammophytic (sand-loving) scrub, 
characterized by Croton wigginsii (dunes croton), Eriogonum deserticola 
(desert buckwheat), Helianthus niveus ssp. tephrodes (Algodones Dunes 
sunflower), Palafoxia arida var. gigantean (giant Spanish-needle), 
Pholisma sonorae (sand food), Tiquilia plicata (plicate coldenia), 
Petalonyx thurberi (Thurber's sandpaper plant), and Panicum urvilleanum 
(dunes panic grass) (WESTEC 1977, p. 58; Porter et al. 2005, p. 14). 
However, none of these species truly dominates the landscape (Porter et 
al. 2005, p. 14).
    In areas where the sand dunes are more stabilized (less sand dune 
building and movement), such as along the margins of the dune fields, 
the open canopy psammophytic scrub community is replaced by the sandier 
phases of the creosote bush scrub community. Astragalus magdalenae var. 
peirsonii is apparently excluded from the relatively more-closed 
canopy, creosote bush scrub community. The presence of this associated 
co-adapted psammophytic scrub plant community is important for 
population growth of A. m. var. peirsonii, because it provides habitat 
for insect pollinators required by A. m. var. peirsonii for fruit 
production (Porter et al. 2005, p. 35). The white-faced digger bee has 
been found to be the most frequent visitor on and may be the primary 
pollinator for this taxon (Porter et al. 2005, p. 32).

Intervening Areas for Connectivity Within the Population

    The active sand dunes are continuous along the northwest-to-
southeast axis. The continuity of the sand dunes provides connectivity 
and reduces fragmentation within the population by allowing the 
movement of pollinators and the wind dispersal of fruit and seeds. 
Therefore, areas of the sand dunes between bowls occupied by Astragalus 
magdalenae var. peirsonii are important for maintaining connectivity 
within the population.

Areas That Provide the Basic Requirements for Growth (Such as Water, 
Light, and Minerals)

    A soil survey for the Imperial Valley area of Imperial County did 
not include the areas east of the Coachella Canal, but did depict a few 
adjacent portions of the Dunes as Rositas fine sand with 9 to 30 
percent slopes (Zimmerman 1981, p. 32). Rositas fine sand is described 
as deep, sloping soils formed in wind-blown sands of diverse origin. 
Dean (1978, p. 65) describes the sand as quartz with a mean grain size 
of 0.006 in (0.17 mm). The Dunes sand is composed of 60 to 70 percent 
quartz and 30 to 40 percent feldspar (Norris and Norris 1961, p. 610). 
Porter et al. (2005, pp. 26-27) describes the sand as containing very 
little organic material (less than 1 percent). They also found that 
following rainfall, the dune surface held considerable moisture. Within 
2 to 3 weeks of a rainfall event, moist sand was found 1 in (3 cm) 
below the dune surface, and later in the season (e.g., April) moist 
sand was found 7 in (19 cm) below the surface (Porter et al. 2005, pp. 
26-27). Therefore, Rositas fine sands are required by this species to 
provide the basic requirements for growth.

Primary Constituent Elements for Astragalus magdalenae var. peirsonii

    Within the geographical area occupied by Astragalus magdalenae var. 
peirsonii at the time of listing, we must identify the PCEs laid out in 
the quantity and spatial arrangement essential to the conservation of 
the species (i.e., essential physical and biological features) that may 
require special management considerations or protection. All areas 
designated as critical habitat are currently occupied, within the 
species' historical geographic range, and contain sufficient PCEs to 
support at least one life history function.
    Based on the above needs and our current knowledge of the life 
history, biology, and ecology of the species, we

[[Page 8766]]

have determined that the PCEs for Astragalus magdalenae var. peirsonii 
are:
    (1) West and/or northwest-facing sides of bowls, swales, and slopes 
consisting of Rositas fine sands within intact, active sand dune 
systems (defined as sand areas that are subject to sand-moving winds) 
in the existing range of the species that provide space needed for 
individual and population growth, including sites for germination, 
reproduction, seed dispersal, seed bank, and pollination;
    (2) The associated co-adapted psammophytic scrub plant community 
characterized by Croton wigginsii, Eriogonum deserticola, Helianthus 
niveus ssp. tephrodes, Palafoxia arida var. gigantean, Pholisma 
sonorae, Tiquilia plicata, Petalonyx thurberi, and Panicum urvilleanum 
that provides habitat for insect pollinators, particularly the white-
faced digger bee (Habropoda pallida), required for reproduction; and
    (3) Areas within intact, active sand dune systems between occupied 
bowls, swales, and slopes that allow for pollinator movement and wind 
dispersal of fruit and seeds.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the areas 
within the geographical area occupied by the species at the time of 
listing contain the physical or biological features that are essential 
to the conservation of the species and that may require special 
management considerations or protection.
    Astragalus magdalenae var. peirsonii was listed due to destruction 
of plants and modification of habitat associated with OHV activity and 
associated recreational development (63 FR 53596; October 6, 1998). 
OHVs can impact habitat for A. m. var. peirsonii by:
    (1) Disrupting the natural processes that support dune formation, 
movement, and structure, could disrupt the available habitat needed for 
individual and population growth;
    (2) Causing the collapse of dune faces and ridges, which could 
result in burial of the seed bank;
    (3) Disturbing surface sand, thereby decreasing soil moisture 
needed for establishment of individual plants and population growth; 
and
    (4) Degrading the psammophytic scrub plant community that provides 
habitat for pollinators required for reproduction.
    In the 2004 final critical habitat rule, we stated that OHVs may 
also increase sand compaction (69 FR 47330). However, Porter et al. 
(2005, p. 27) measured soil compaction associated with undisturbed 
dunes, OHV-traversed sand dunes, and dunes disturbed by foot traffic, 
and found that soil compaction on the undisturbed dunes was 
significantly higher. They state that winds and rains cause the sand 
grains on the surface of the dune to sort and pack in undisturbed 
areas, thereby potentially reducing evaporative water loss from the 
dunes. They theorize that OHV activity or walking disturbs the surface 
and may result in increased evaporative water loss in the dunes (Porter 
et al. 2005, p. 27).
    Special management considerations or protection may be required to 
minimize impacts to Astragalus magdalenae var. peirsonii habitat 
resulting from OHV recreation. The BLM (2003, Appendix 1, p. 13) listed 
the following possible management options to protect A. m. var. 
peirsonii and its habitat: (1) Use restrictions based on a permit 
system that would allow a specified level of use (high, medium, low, no 
use); (2) temporally based closures or limitations (open during some 
months or years, closed in others); (3) recognition and management of 
certain areas within a management area; and/or (4) increased education 
and outreach to OHV users to avoid certain areas. Special management 
considerations or protection needed may also include additional 
enforcement to ensure visitor compliance with these management options.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(1)(A) of the Act, we use the best 
scientific and commercial data available in determining areas that 
contain the physical and biological features essential to the 
conservation of species. We consider BLM's 2005 (Willoughby 2005b) 
survey data to be the best available information on the distribution 
and range of Astragalus magdalenae var. peirsonii on the Dunes. An 
exceptional amount of rainfall was recorded during the 2004 to 2005 
growing season, resulting in the highest recorded abundance of the 
species to date, with an estimated 1,831,076 plants in the Dunes 
(Willoughby 2005b, pp. 9-11). This rainfall event coincided with the 
start of BLM's revised survey methodology, which consisted of a more 
detailed survey approach and covered a larger portion of the Dunes 
(Willoughby 2005a, pp. 1-5). The 2005 survey contained 123,488 sample 
plots covering an effective area of 53,000 acres. Because these surveys 
occurred under the best possible growth and germination conditions for 
the plant and covered the largest area and greatest number of sample 
point locations, we relied on BLM's raw 2005 survey data as the basis 
for our criteria and GIS model to delineate critical habitat for A. m. 
var. peirsonii. As stated in the final listing rule (63 FR 53596), the 
Dunes was, and continues to be, the only area in the United States 
known to be occupied by A. m. var. peirsonii.
    Astragalus magdalenae var. peirsonii is a short-lived perennial 
that is likely dependent upon the maintenance of a large seed bank to 
ensure long-term viability within its dunes ecosystem. We believe the 
long-term conservation of A. m. var. peirsonii is dependent upon 
conservation of those areas supporting the largest areas of high 
quality habitat that contain large numbers of standing plants, and that 
are close enough to other similar areas to allow for necessary 
dispersal and gene flow. Such areas are most likely to support and 
maintain relatively large seed banks. We consider such areas to 
represent the essential core population areas for A. m. var. peirsonii, 
and are the areas most likely to contribute to the recovery of the 
species.As also discussed in the Summary of Changes from the Previously 
Designated Critical Habitat and 2007 Proposed Revised Rule section 
above, we obviously did not have BLM's 2005 (Willoughby 2005b) survey 
data on the distribution and range of Astragalus magdalenae var. 
peirsonii on the Dunes when we proposed critical habitat in 2003. 
Instead, we developed a model based on four variables depicted on GIS-
based maps for determining which areas of the Dunes are essential for 
the conservation of the species. Aside from using less rigorous 
distributional data (34 versus 510 transects) collected by the BLM from 
1998 to 2002 from poorer rainfall years, we also employed the presence 
and absence of four other rare psammophytic scrub taxa that occur in 
the Dunes as a model variable. As a result, the model used for the 2003 
proposed critical habitat rule included nearly all areas of occupancy 
of A. m. var. peirsonii and overestimated the areas that meet the 
definition of critical habitat. Using the raw data collected by BLM 
during 2005, we were able to more precisely identify the core 
population areas we consider essential to the conservation of A. m. 
var. peirsonii.
    We delineated the final revised critical habitat boundaries using 
the following criteria and GIS model:
    (1) We selected occupied cells (defined in Willoughby (2005b) as 82 
ft x 82 ft (25 m x 25 m) survey areas) with a plant density greater 
than 480 plants

[[Page 8767]]

per 2.5 ac (1 ha) (30 plants per cell) as core areas. We used a density 
of 480 plants per 2.5 ac (1 ha) because this captured the majority of 
the large clusters of standing plants. As stated above, we believe 
these higher density core areas contain a larger extent of high quality 
habitat (e.g., suitable dune morphology and soil moisture). Also, 
because these core areas contain higher numbers of standing plants in 
proximity to each other, we believe that these areas likely support 
relatively large seed banks (a greater number of seeds being 
contributed by a greater number of standing plants). Therefore, because 
these core areas contain a larger extent of high-quality habitat and 
larger seed banks, we determined that these areas support the physical 
and biological features essential to the conservation of Astragalus 
magdalenae var. peirsonii, and are the areas most likely to contribute 
to the recovery of the species.
    (2) We expanded each core area to 5 ac (2 ha) and then merged 5 ac 
(2 ha) core areas within 328.08 ft (100 m) distances of each other to 
form aggregated core areas. We expanded core areas to 5 ac (2 ha) to 
capture the entire population and seed bank in a dune bowl, based on 
our field observations that most occupied dune bowls are approximately 
5 ac (2 ha) in size. We aggregated the 5 ac (2 ha) core areas within 
328.08 ft (100 m) of each other to maintain space for wind dispersal of 
seeds between occupied dune bowls. This 328.08 ft (100 m) distance is a 
Dunes-wide approximation of the average distance between aggregated 
core areas.
    (3) We then eliminated outlying or remote core areas greater than 
1,312 ft (400 m) (4 bowls) from adjacent core areas and core areas less 
than 1,312 ft (400 m) away but with a plant density less than 
approximately 370 plants (= 0.0005 of the total observed population of 
739,805 plants) within the aggregated core area. This step allowed us 
to remove core areas with low numbers of plants considered not 
essential to the conservation of the species. Because these areas are a 
greater distance from aggregated core areas and/or contain relatively 
fewer standing plants, we believe these areas either contain a smaller 
extent of high-quality habitat (e.g., suitable dune morphology and soil 
moisture) and/or support relatively small seed banks.
    (4) We then overlaid a 1,076-ft\2\ (100-m\2\) grid onto the final 
core areas to describe the boundaries of the critical habitat. We 
removed remaining small polygons less than 1,312 ft (400 m) from the 
core habitat in which the plant density was low. Since these polygons 
contained a low number of standing plants, we believe these areas 
contain a smaller extent of high-quality habitat (e.g., suitable dune 
morphology, soil moisture) and/or support relatively small seed banks.
    This methodology captured approximately 92 percent of the 2005 
observed population and includes areas that contain high-density core 
populations, the majority of high-quality habitat, and a large seed 
bank. These areas support the physical and biological features we have 
determined are essential to the conservation of the species.
    When determining critical habitat boundaries within this final 
revised rule, we made every effort to avoid developed areas, such as 
lands covered by buildings, pavement, and other structures, because 
such lands lack PCEs for Astragalus magdalenae var. peirsonii. The 
scale of the maps we prepared under the parameters for publication 
within the Code of Federal Regulations may not reflect the exclusion of 
such developed lands. Any such lands inadvertently left inside critical 
habitat boundaries shown on the maps of this final revised rule are 
excluded by text in the final revised rule. Therefore, a Federal action 
involving these lands would not trigger consultation under section 7 of 
the Act with respect to critical habitat and the requirements of no 
adverse modification, unless the specific action may affect adjacent 
critical habitat.

Revised Critical Habitat Designation

    We are designating approximately 12,105 ac (4,899 ha) as revised 
critical habitat for Astragalus magdalenae var. peirsonii within 3 
units. Table 3 outlines the areas included and the areas excluded from 
this final revised critical habitat by land ownership. Subunits 
designated as critical habitat are discussed in detail below in the 
``Unit Descriptions'' section. These units generally correspond to 
those units in the 2004 designation (see Table 3). The critical habitat 
areas we describe below constitute our current best assessment of areas 
that meet the definition of critical habitat for A. m. var. peirsonii. 
Table 4 shows the occupied units.

   Table 3.--Revised Critical Habitat Units and Subunits for Astragalus magdalenae var. peirsonii Depicting the area Designated by Subunit of Critical
                                   Habitat and Areas Excluded From the Critical Habitat Designation, by Land Ownership
                            [Numbers have been rounded to the nearest whole digit and may overestimate area due to rounding.]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                       Total area        Total area        Total area
          Critical habitat unit             Critical habitat subunit        Land ownership\1\         proposed  (ac     excluded  (ac    designated  (ac
                                                                                                          (ha))             (ha))             (ha))
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 1--Mammoth Wash/North Algodones Dunes Wilderness.............................................     4,675 (1,892)                 0     4,675 (1,892)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Subunit 1A.................  BLM........................          203 (82)                 0          203 (82)
                                                                       Private....................          218 (88)                 0          218 (88)
                                          Subunit 1B.................  BLM........................       1,389 (562)                 0       1,389 (562)
                                                                       Private....................            22 (9)                 0            22 (9)
                                          Subunit 1C.................  BLM........................         730 (296)                 0         730 (296)
                                                                       State......................            11 (4)                 0            11 (4)
                                          Subunit 1D.................  BLM........................       2,103 (851)                 0       2,103 (851)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 2--Gecko/Glamis..............................................................................     4,003 (1,620)     4,003 (1,620)                 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Subunit 2A.................  BLM........................     2,716 (1,099)     2,716 (1,099)                 0
                                          Subunit 2B.................  BLM........................       1,287 (521)       1,287 (521)                 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 3--Adaptive Management Area/Ogilby...........................................................     7,212 (2,919)                 0     7,212 (2,919)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Subunit 3A.................  BLM........................     4,487 (1,816)                 0     4,487 (1,816)

[[Page 8768]]

 
                                          Subunit 3B.................  BLM........................       1,176 (476)                 0       1,176 (476)
                                          Subunit 3C.................  BLM........................       1,549 (627)                 0       1,549 (627)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 4--Buttercup....................................................  BLM........................          218 (88)                 0          218 (88)
--------------------------------------------------------------------------------------------------------------------------------------------------------
    Total...............................  ...........................  ...........................    16,108 (6,519)     4,003 (1,620)    12,105 (4,899)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ BLM = Bureau of Land Management; State = California State Lands Commission.


          Table 4.--Occupancy of Astragalus magdalenae var. peirsonii by Revised Critical Habitat Units
----------------------------------------------------------------------------------------------------------------
                                             Occupied at time of                                 Size of unit in
         Critical habitat unit                    listing?              Currently occupied?     acres (hectares)
----------------------------------------------------------------------------------------------------------------
Unit 1--Mammoth Wash/North Algodones Dunes Wilderness
----------------------------------------------------------------------------------------------------------------
    Subunit 1A.........................  Yes.......................  Yes......................         421 (170)
    Subunit 1B.........................  Yes.......................  Yes......................       1,411 (571)
    Subunit 1C.........................  Yes.......................  Yes......................         741 (300)
    Subunit 1D.........................  Yes.......................  Yes......................       2,103 (851)
----------------------------------------------------------------------------------------------------------------
Unit 2--Gecko/Glamis
----------------------------------------------------------------------------------------------------------------
    Subunit 2A.........................  Yes.......................  Yes......................     2,716 (1,099)
    Subunit 2B.........................  Yes.......................  Yes......................       1,287 (521)
----------------------------------------------------------------------------------------------------------------
Unit 3--Adaptive Management Area/Ogilby
----------------------------------------------------------------------------------------------------------------
    Subunit 3A.........................  Yes.......................  Yes......................     4,487 (1,816)
    Subunit 3B.........................  Yes.......................  Yes......................       1,176 (476)
    Subunit 3C.........................  Yes.......................  Yes......................       1,549 (627)
----------------------------------------------------------------------------------------------------------------
Unit 4--Buttercup                        Yes.......................  Yes......................          218 (88)
----------------------------------------------------------------------------------------------------------------

Unit Descriptions

    We present brief descriptions of all units and reasons why they 
meet the definition of critical habitat for Astragalus magdalenae var. 
peirsonii below.

Unit 1: Mammoth Wash/North Algodones Dunes Wilderness

    Unit 1 consists of 4,675 ac (1,892 ha) of land, further divided 
into 4 subunits (1A, 1B, 1C, 1D), the majority of which is primarily 
Federal land under BLM management (Table 3). This unit includes land in 
the BLM's Mammoth Wash and North Algodones Dunes Wilderness Management 
Areas.

Subunits 1A (421 ac (170 ha)) and 1B (1,411 ac (571 ha))

    Subunits 1A and 1B are in the Mammoth Wash area. About half of the 
land in Subunit 1A is under BLM ownership, and the other half is under 
private ownership (Table 3). The majority of the land in Subunit 1B is 
managed by the BLM (Table 3). Both subunits were occupied at the time 
of listing, are currently occupied, and contain the physical and 
biological features essential to the conservation of the species. 
Habitat in Subunits 1A and 1B supports the largest numbers of 
Astragalus magdalenae var. peirsonii in the Mammoth Wash Management 
Area, with approximately 8,002 plants observed in Subunit 1A and 24,623 
plants observed in Subunit 1B (based on our calculations using BLM's 
2005 raw survey data). In addition to supporting the PCEs (1, 2, and 3) 
for the species, habitat within these subunits contains a higher 
density of standing plants than adjacent areas and likely supports a 
large seed bank based on our analysis of BLM's 2005 survey data.
    The Mammoth Wash Management Area is used for camping, hunting, 
rights of way, motion picture/television filming, and OHV recreation 
(BLM 2003, p. 67). The majority of Subunit 1B is within an interim 
closure area that is temporarily closed to OHV activity. Because the 
area outside of the interim closure area is remote and difficult to 
access, OHV recreationists give it relatively light visitation on 
holiday weekends and minimal visitation during the week (BLM 2003, p. 
67). This management area had the lowest average annual visitation 
(approximately 80 vehicles) of all management areas open for OHV use 
during the 2003-2004, 2004-2005, and 2005-2006 seasons (BLM 2006).
    The essential features found in Subunit 1A may require special 
management considerations or protection, such as use restrictions and/
or additional enforcement to minimize impacts associated with OHV use 
and associated recreational activity. The majority of the habitat in 
Subunit 1B is now being managed by the BLM to minimize impacts 
associated with OHV use through an interim closure of the area. 
However, regardless of the future status of this interim closure area, 
the essential features found in this subunit may require special 
management considerations or protection, such as OHV-use restrictions 
and/or additional enforcement in the future to minimize impacts 
associated with OHV recreation

[[Page 8769]]

(see ``Special Management Considerations or Protection'' section).

Subunits 1C (741 ac (300 ha)) and 1D (2,103 ac (851 ha))

    The majority of land in Subunit 1C and all of the land in Subunit 
1D is Federal land managed by the BLM (Table 3). Both subunits were 
occupied at the time of listing, are currently occupied, and contain 
the physical and biological features essential to the conservation of 
the species. Habitat in Subunits 1C and 1D retains the most natural and 
pristine features of the Dunes ecosystem, and includes the best 
remaining example of a dune system undisturbed by intensive OHV 
recreation in the ISDRA. These areas also support the largest numbers 
of Astragalus magdalenae var. peirsonii in the North Algodones Dunes 
Wilderness Management Area, with approximately 15,519 plants observed 
in Subunit 1C and 42,673 plants observed in Subunit 1D (based on our 
calculations using BLM's 2005 raw survey data). In addition to 
supporting the PCEs (1, 2, and 3) for the species, habitat within these 
subunits contains a higher density of standing plants than adjacent 
areas and likely supports a large seed bank based on our analysis of 
BLM's 2005 survey data.
    The North Algodones Dunes Wilderness Management Area is a 32,000 ac 
(12,955 ha) area that was designated as a wilderness area in 1994 to 
protect a number of rare and endemic plant and animal species, 
including Astragalus magdalenae var. peirsonii. Activities in this area 
include photographic activities, sightseeing, walking, hiking, 
backpacking, camping, nature study, horseback riding, hunting, rights-
of-way, and wildlife viewing (BLM 2003, p. 71). No recreational use of 
mechanized vehicles of any kind (OHVs, motorcycles, bicycles, hang 
gliders, motorized equipment, or motorboats) is allowed in the 
wilderness area; management takes the form of ``minimal and subtle on-
site controls and restrictions'' (BLM 2003). However, people 
occasionally trespass with motorized vehicles, and the BLM acknowledges 
that the amount of motorized trespasses in this area should be reduced 
(BLM 2003, p. 71).
    The essential features found in both subunits may require special 
management considerations or protection; such as additional enforcement 
to minimize impacts associated with unauthorized trespass by motorized 
vehicles (see ``Special Management Considerations or Protection'' 
section).

Unit 2: Gecko/Glamis

    Unit 2 consists of 4,003 ac (1,620 ha) of land further divided into 
2 Subunits (2A and 2B), which are Federal lands managed by the BLM 
(Table 3). This unit includes lands in the BLM's Gecko and Glamis 
Management Areas, with the majority being in the Gecko Management Area. 
We are excluding Unit 2 based upon the disproportionately high impacts 
(both monetary and otherwise) of including this unit relative to the 
other units in this final revised designation, as discussed below in 
``Areas Excluded Under Section 4(b)(2) of the Act.''

Unit 3: Adaptive Management Area (AMA)/Ogilby

    Unit 3 consists of 7,212 ac (2,919 ha) of land further divided into 
3 subunits (3A, 3B, 3C), which are Federal lands under BLM management 
(Table 3). This unit includes lands in the BLM's AMA and Ogilby 
Management Areas.

Subunits 3A (4,487 ac (1,816 ha)), 3B (1,176 ac (476 ha)), and 3C 
(1,549 ac (627 ha))

    All three subunits were occupied at the time of listing, are 
currently occupied, and contain the physical and biological features 
essential to the conservation of the species. Habitat in Subunits 3A, 
3B, and 3C represents the largest, widest, and highest sand dune fields 
within the Dunes and supports the largest numbers of Astragalus 
magdalenae var. peirsonii Dunes-wide, with approximately 200,021 plants 
observed in Subunit 3A; 178,837 plants observed in Subunit 3B; and 
125,526 plants observed in Subunit 3C (based on our calculations using 
BLM's 2005 raw survey data). In addition to supporting the PCEs (1, 2, 
and 3) for the species, habitat within these subunits contains a higher 
density of standing plants than adjacent areas and likely supports a 
large seed bank based on our analysis of BLM's 2005 survey data.
    All of Subunit 3A and about half of Subunit 3B are in the BLM's 
AMA. The other half of Subunit 3B and all of Subunit 3C are in the 
Ogilby Management Area. The AMA is intended primarily for OHV 
recreation, although there is also rights-of-way use (BLM 2003, p. 84). 
However, the entire AMA, including all of Subunit 3A and most of 
Subunit 3B, is within an interim closure area, temporarily closed to 
OHV activity. The Ogilby Management Area is used for camping, OHV 
recreation, and rights-of-way (BLM 2003, p. 90). A portion of the 
Ogilby Management Area, including a small portion of Subunit 3C, is 
within an interim closure area, temporarily closed to OHV activity. 
Areas of the Ogilby Management Area open to OHV use had average annual 
visitation of approximately 12,951 vehicles during the 2003-2004, 2004-
2005, and 2005-2006 seasons (BLM 2006).
    The essential features found in Subunit 3C not within the interim 
closure area may require special management considerations or 
protection such as use restrictions and/or additional enforcement to 
minimize impacts associated with OHV recreation. Habitat in Subunits 3A 
and 3B, and a small portion of Subunit 3C, are currently being managed 
by the BLM to minimize impacts associated with OHV use through an 
interim closure of the area. However, regardless of the future status 
of this interim closure area, the essential features found in these 
subunits may require special management considerations or protection 
such as OHV-use restrictions and/or additional enforcement in the 
future to minimize impacts associated with OHV recreation (see 
``Special Management Considerations or Protection'' section).

Unit 4: Buttercup

    Unit 4 consists of 218 ac (88 ha) of Federal land entirely under 
BLM management (Table 3). This unit includes lands in the BLM's 
Buttercup Management Area. This unit was occupied at the time of 
listing, is currently occupied, and contains the physical and 
biological features essential to the conservation of the species. 
Habitat in Unit 4 supports the largest number of Astragalus magdalenae 
var. peirsonii in the Buttercup Management Area, with approximately 
30,011 plants observed (based on our calculations using BLM's 2005 raw 
survey data). In addition to supporting the PCEs (1, 2, and 3) for the 
species, habitat within these subunits contains a higher density of 
standing plants than adjacent areas and likely supports a large seed 
bank based on our analysis of BLM's 2005 survey data.
    This area is used for camping, OHV recreation, sight-seeing, 
commercial vending, education, filming, and rights of way (BLM 2003, p. 
97). The Buttercup Management Area had the second highest average 
annual visitation (approximately 78,629 vehicles) of the management 
areas open for OHV use during the 2003-2004, 2004-2005, and 2005-2006 
seasons (BLM 2006). Due to its proximity to Mexico, United States-
Mexico international border issues (e.g., illegal border crossings and 
smuggling of goods and contraband) also exist in this management area 
resulting in

[[Page 8770]]

frequent patrol by the U.S. Border Patrol (BLM 2003, p. 97). The 
essential features found in Unit 4 may require special management 
considerations or protection such as use restrictions and/or additional 
enforcement to minimize impacts associated with intensive OHV activity 
(see ``Special Management Considerations or Protection'' section).

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to jeopardize the continued existence of a listed species or 
destroy or adversely modify designated critical habitat. Decisions by 
the 5th and 9th Circuit Courts of Appeals have invalidated our 
definition of ``destruction or adverse modification'' (50 CFR 402.02) 
(see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 
F.3d 1059 (9th Cir 2004) and Sierra Club v. U.S. Fish and Wildlife 
Service et al., 245 F.3d 434, 442F (5th Cir 2001)), and we do not rely 
on this regulatory definition when analyzing whether an action is 
likely to destroy or adversely modify critical habitat. Under the 
statutory provisions of the Act, we determine destruction or adverse 
modification on the basis of whether, with implementation of the 
proposed Federal action, the affected critical habitat would remain 
functional to serve its intended conservation role for the species.
    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, we document 
compliance with the requirements of section 7(a)(2) through our 
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 are likely to 
adversely affect listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species or 
destroy or adversely modify critical habitat, we also provide 
reasonable and prudent alternatives to the project, if any are 
identifiable. We define ``reasonable and prudent alternatives'' at 50 
CFR 402.02 as alternative actions identified during consultation that:
    <bullet> Can be implemented in a manner consistent with the 
intended purpose of the action,
    <bullet> Can be implemented consistent with the scope of the 
Federal agency's legal authority and jurisdiction,
    <bullet> Are economically and technologically feasible, and
    <bullet> Would, in the Director's opinion, avoid jeopardizing the 
continued existence of the listed species or destroying or adversely 
modifying critical habitat.

    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies may sometimes need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.
    Federal activities that may affect Astragalus magdalenae var. 
peirsonii or its designated critical habitat will require section 
7(a)(2) consultation under the Act. Activities on State, Tribal, local 
or private lands requiring a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from us under section 10(a)(1)(B) 
of the Act) or involving some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency) are 
examples of agency actions that may be subject to the section 7(a)(2) 
consultation process. Federal actions not affecting listed species or 
critical habitat, and actions on State, Tribal, local or private lands 
that are not federally funded, authorized, or permitted, do not require 
section 7(a)(2) consultations.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species. Activities that may destroy or 
adversely modify critical habitat are those that alter the essential 
features to an extent that appreciably reduces the conservation value 
of critical habitat for Astragalus magdalenae var. peirsonii. 
Generally, the conservation role of A. m. var. peirsonii 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, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that, when carried out, funded, or authorized by a 
Federal agency, may affect critical habitat and therefore should result 
in consultation for Astragalus magdalenae var. peirsonii include, but 
are not limited to, activities that disrupt the natural processes that 
support dune formation, movement, and structure; or otherwise change 
the morphology of the dunes (e.g., ridges, slip faces, bowls, swales); 
and activities that degrade or diminish psammophytic scrub, including 
activities that (a) Disturb the sand such that soil moisture is lost 
resulting in decreased seed germination or desiccation of plants 
resulting in premature death, or (b) bury or expose seeds resulting in 
decreased seed germination; or (c) physically impact or dislodge plants 
resulting in premature death such as (please see the ``Special 
Management Considerations or Protection'' section for a more detailed 
discussion on the impacts of these actions to A. m. var. peirsonii):
    (1) Development of the Recreational Area Management Plan for the 
Imperial Sand Dunes Recreation Area by the BLM;
    (2) Issuance of permits for private actions (e.g. filming) on 
Federal lands within the Dunes by the BLM;
    (3) Modifications to the All American Canal in the Dunes vicinity 
by the Bureau of Reclamation;
    (4) Construction and maintenance of facilities by the U.S. Border 
Patrol; and
    (5) Other monitoring and enforcement activities of the U.S. Border 
Patrol involving vehicular operations on the Dunes.
    We consider all of the revised critical habitat units to contain 
the physical and biological features essential to the conservation of 
Astragalus magdalenae var. peirsonii. All units are within the 
geographic range of this taxon and all were occupied by the species at 
the time of listing. Federal agencies already consult with us on 
activities in areas currently occupied by A. m. var. peirsonii, or if 
the species or its

[[Page 8771]]

designated critical habitat may be affected by the action, to ensure 
that their actions do not jeopardize the continued existence of A. m. 
var. peirsonii or destroy or adversely modify its designated critical 
habitat.

Exclusions

Application of Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary must designate 
or revise critical habitat on the basis of the best available 
scientific data after taking into consideration the economic impact, 
national security impact, and any other relevant impact of specifying 
any particular area as critical habitat. The Secretary may exclude an 
area from critical habitat if he determines that the benefits of such 
exclusion outweigh the benefits of specifying such area as part of the 
critical habitat, unless he determines, based on the best scientific 
data available, that the failure to designate such area as critical 
habitat will result in the extinction of the species. In making that 
determination, the legislative history is clear that the Secretary has 
broad discretion regarding which factor(s) to use and how much weight 
to give to any factor.
    In the following sections, we address a number of general issues 
that are relevant to the exclusions we considered. In addition, the 
Service has conducted an economic analysis of the impacts of the 
proposed revision to designated critical habitat and related factors 
(referred to here as the DEA). The DEA was made available for public 
review and comment from July 27, 2007, to September 25, 2007 (72 FR 
41258). Substantive comments and information received on the DEA are 
summarized above in the ``Summary of Comments and Recommendations'' 
section and have been incorporated into the final analysis, as 
appropriate. Based on public comment on the DEA, the proposed revision 
to critical habitat, and the information in this final revised 
designation of critical habitat and the final economic analysis, we 
have excluded areas from the revised critical habitat 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 424.19.

Benefits of Designating Critical Habitat

    The process of designating critical habitat as described in the Act 
requires that the Service identify those lands within the geographical 
area occupied by the species at the time of listing on which are found 
the physical or biological features essential to the conservation of 
the species that may require special management considerations or 
protection, and those areas outside the geographical area occupied by 
the species at the time of listing that are essential for the 
conservation of the species. In identifying those lands, the Service 
must consider the recovery needs of the species, such that, on the 
basis of the best scientific and commercial data available at the time 
of designation, the habitat that is identified, if protected or managed 
appropriately, could provide for the survival and recovery of the 
species.
    The identification of those areas that are essential for the 
conservation of the species or contain essential features and can, if 
protected or managed appropriately, provide for the recovery of a 
species is beneficial. The process of proposing and finalizing a 
critical habitat rule provides the Service with the opportunity to 
determine the physical or biological features essential to the 
conservation of the species within the geographical area occupied by 
the species at the time of listing, as well as to determine other areas 
essential for the conservation of the species. The designation process 
includes peer review and public comment on the identified physical and 
biological features and areas. This process is valuable to land owners 
and managers in developing conservation management plans for identified 
areas, as well as any other occupied habitat or suitable habitat that 
may not have been included in the Service's determination of essential 
habitat.
    The consultation provisions under section 7(a) of the Act 
constitute the regulatory benefits of critical habitat. As discussed 
above, Federal agencies must consult with us on discretionary actions 
that may affect critical habitat and must avoid destroying or adversely 
modifying critical habitat. Federal agencies must also consult with us 
on discretionary actions that may affect a listed species and refrain 
from undertaking actions that are likely to jeopardize the continued 
existence of such species. The analysis of effects to critical habitat 
is a separate and different analysis from that of the effects to the 
species. Therefore, the difference in outcomes of these two analyses 
represents the regulatory benefit of critical habitat. For some 
species, and in some locations, the outcome of these analyses will be 
similar, because effects on habitat will often result in effects on the 
species. However, the regulatory standard is different: the jeopardy 
analysis looks at the action's impact on survival and recovery of the 
species, while the adverse modification analysis looks at the action's 
effects on the designated habitat's contribution to the species' 
conservation. This will, in many instances, lead to different results 
and different regulatory requirements.
    There are two limitations to the regulatory effect of critical 
habitat. First, a section 7(a)(2) consultation is required only where 
there is a Federal nexus (an action authorized, funded, or carried out 
by any Federal agency)--if there is no Federal nexus, the critical 
habitat designation of private lands itself does not restrict any 
actions that destroy or adversely modify critical habitat. Second, the 
designation only limits destruction or adverse modification. By its 
nature, the prohibition on adverse modification is designed to ensure 
that the conservation role and function of those areas that contain the 
physical and biological features essential to the conservation of the 
species or of unoccupied areas that are essential for the conservation 
of the species are not appreciably reduced. Critical habitat 
designation alone, however, does not require property owners to 
undertake affirmative actions to promote the recovery of the species.
    Once an agency determines that consultation under section 7(a)(2) 
of the Act is necessary, the process may conclude informally when we 
concur in writing that the proposed Federal action is not likely to 
adversely affect critical habitat. However, if we determine through 
informal consultation that adverse impacts are likely to occur, then we 
would initiate formal consultation, which would conclude when we issue 
a biological opinion on whether the proposed Federal action is likely 
to result in destruction or adverse modification of critical habitat.
    For critical habitat, a biological opinion that concludes in a 
determination of no destruction or adverse modification may contain 
discretionary conservation recommendations to minimize adverse effects 
to essential features, but it would not suggest the implementation of 
any reasonable and prudent alternative. We suggest reasonable and 
prudent alternatives to the proposed Federal action only when our 
biological opinion results in an adverse modification conclusion.
    As stated above, the designation of critical habitat does not 
require that any management or recovery actions take place on the lands 
included in the designation. Even in cases where consultation has been 
initiated under section 7(a)(2) of the Act, the end result of 
consultation is to avoid jeopardy to the species and/or adverse 
modification of its critical habitat. Conversely,

[[Page 8772]]

voluntary conservation efforts implemented through management plans 
institute proactive actions over the lands they encompass and are put 
in place to remove or reduce known threats to a species or its habitat, 
therefore implementing recovery actions. We believe that in many 
instances the benefit to a species or its habitat realized through the 
designation of critical habitat is low when compared to the 
conservation benefit that can be achieved through voluntary 
conservation efforts or management plans. The conservation achieved 
through implementing HCPs or other habitat management plans can be 
greater than what we achieve through multiple site-by-site, project-by-
project, section 7(a)(2) consultations involving consideration of 
critical habitat. Management plans may commit resources to implement 
long-term management and protection to particular habitat for at least 
one and possibly additional listed or sensitive species. Section 
7(a)(2) consultations commit Federal agencies to preventing adverse 
modification of critical habitat caused by the particular project only, 
and not to providing conservation or long-term benefits to areas not 
affected by the proposed project. Thus, implementation of any HCP or 
management plan that considers enhancement or recovery as the 
management standard may often provide as much or more benefit than a 
consultation for critical habitat designation.
    Another benefit of including lands in critical habitat is that 
designation of critical habitat serves to educate landowners, State and 
local governments, and the public regarding the potential conservation 
value of an area. This helps focus and promote conservation efforts by 
other parties by clearly delineating areas of high conservation value 
for the particular species. In general, critical habitat designation 
always has educational benefits; however, in some cases, they may be 
redundant with other educational effects. For example, HCPs have 
significant public input and may largely duplicate the educational 
benefits of a critical habitat designation. Including lands in critical 
habitat also would inform State agencies and local governments about 
areas that could be conserved under State laws or local ordinances.

Economics

    Section 4(b)(2) of the Act allows the Secretary to exclude areas 
from critical habitat for economic reasons if the Secretary determines 
that the benefits of such exclusion exceed the benefits of designating 
the area as critical habitat. However, this exclusion cannot occur if 
it will result in the extinction of the species concerned.
    In making the following exclusions, we have considered in general 
that all of the costs and other impacts predicted in the economic 
analysis might not be avoided by this exclusion. This is because all of 
the areas in question are currently occupied by Astragalus magdalenae 
var. peirsonii and there will be requirements for consultation under 
section 7 of the Act; in addition, other protections for the species 
exist elsewhere in the Act and under State and local laws and 
regulations.
    Concurrent with the publication of the proposed revised critical 
habitat designation, we announced the availability of an economic 
analysis to estimate the potential economic effect of the revised 
designation. The draft economic analysis was made available for public 
review on July 27, 2007 (72 FR 41258). We accepted comments on the 
draft analysis until September 25, 2007.
    The primary purpose of the economic analysis is to estimate the 
potential economic impacts associated with the revised designation of 
critical habitat for Astragalus magdalenae var. peirsonii. The 
information regarding the incremental impacts of the critical habitat 
designation is intended to assist the Secretary in making decisions 
about whether the benefits of excluding particular areas from the 
revised designation outweigh the benefits of including those areas in 
the revised designation.
    The current analysis focuses on the direct and indirect costs of 
the rule. However, economic impacts to land use activities can exist in 
the absence of critical habitat. These impacts may result from, for 
example, local zoning laws, State and natural resource laws, and 
enforceable management plans and best management practices applied by 
other State and Federal agencies. Economic impacts that result from 
these types of protections are not included in the analysis, as they 
are considered to be part of the regulatory and policy baseline.
    The economic analysis considers the potential economic effects of 
actions relating to the conservation of Astragalus magdalenae var. 
peirsonii, including costs associated with sections 4, 7, and 10 of the 
Act, and identifies the incremental impacts attributable solely to the 
designation of critical habitat. It further considers the economic 
effects of protective measures taken as a result of other Federal, 
State, and local laws that aid habitat conservation for A. m. var. 
peirsonii in areas containing the physical and biological features 
essential to the conservation of the species. The analysis considers 
both economic efficiency and distributional effects. In the case of 
habitat conservation, efficiency effects generally reflect the 
``opportunity costs'' associated with the commitment of resources to 
comply with habitat protection measures (such as lost economic 
opportunities associated with restrictions on land use).
    The analysis also addresses how potential economic impacts are 
likely to be distributed, including an assessment of any local or 
regional impacts of habitat conservation and the potential impacts of 
conservation activities on small entities and the energy industry. This 
information can be used by decision-makers to assess whether the 
effects of the designation might unduly burden a particular group or 
economic sector. Finally, this analysis looks retrospectively at costs 
that have been incurred since the date Astragalus magdalenae var. 
peirsonii was listed as threatened (October 6, 1998; 63 FR 53596), and 
considers those costs that may occur in the 20 years following a 
designation of critical habitat.
    Based on public comments received and new information, we developed 
a final economic analysis of the potential incremental economic effects 
of the revised designation. The total potential post-designation 
efficiency impacts for the timeframe 2008-2027 range from a lower bound 
of zero to an upper bound range of $116-$127 million in undiscounted 
dollars ($5.80 million to $6.33 million annualized). Discounted future 
costs are estimated to be $85.8 million to $93.3 million ($5.77 million 
to $6.27 million annualized) at a 3 percent discount rate, or $60.6 
million to $65.7 million ($5.72 million to $6.20 million annualized) at 
a 7 percent discount rate. Most of the impact results from the 
potential closure of designated critical habitat areas from 
recreational OHV use. The critical habitat unit with the greatest 
potential impacts is Unit 2; impacts in this unit constitute about 93 
percent of potential efficiency effects. These costs are attributable 
to loss of revenue generated by businesses supporting the OHV community 
as a direct result of the designation of critical habitat.
    A copy of the final economic analysis with supporting documents is 
included in our administrative record and may be obtained by contacting 
U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife Office (see 
ADDRESSES), or by

[[Page 8773]]

download from the Internet at http://www.fws.gov/carlsbad.

Areas Excluded Under Section 4(b)(2) of the Act--Unit 2 (Subunits 2A 
and 2B)

    The revised FEA estimates the potential incremental efficiency 
effects associated with the designation and the potential incremental 
regional economic impacts. The primary assumption applied in the 
economic analysis is that the designation of critical habitat for 
Astragalus magdalenae var. peirsonii may result in the closure of 
portions of the critical habitat. This assumption is based on the 
likely management actions that could result from the critical habitat 
designation due to our expected interpretation of adverse modification 
standards in future consultations with BLM, as well as the past 
behavior of BLM in closing areas to protect the listed plant. The 
economic analysis presents two scenarios that bound the potential 
economic impacts. At the lower bound, the analysis assumes that 
visitation levels are not affected by closures of portions of the ISDRA 
to OHV use. Specifically, the lower bound scenario allows for various 
potential outcomes, including the possibility that BLM chooses a 
management action other than closure of areas or that OHV recreators 
substitute to other areas without a loss in consumer surplus or a 
change in spending patterns. The upper bound scenario reflects the 
assumption that, while overall growth in visitation to the ISDRA will 
continue, some that would have made a trip to the ISDRA for OHV 
recreation will choose not to due to the closure of portions of the 
designated critical habitat.
    At the lower bound, incremental economic efficiency effects are not 
expected. The present value of upper bound, estimated potential 
economic efficiency effects ranges from $60.6 million to $65.7 million 
using a 7 percent discount rate ($5.72 million to $6.20 million 
annualized) over the next 20 years ($116 million to $127 million in 
undiscounted dollars). The range reflects uncertainties in the assumed 
growth in visitation. For the regional economic impacts, no incremental 
impacts are forecast at the lower bound. At the upper bound, potential 
reductions in OHV use at the ISDRA resulting from critical habitat 
could result in regional economic impacts of $15.8 million to $34.0 
million in total output and a potential reduction of 345 to 743 jobs, 
depending on assumed growth in visitation and levels of recreator 
expenditures. The FEA notes that the measures of potential regional 
economic impacts included in the report are fundamentally different 
than the reported potential efficiency effects, and thus cannot be 
added to or compared with estimates of changes in economic efficiency.
    The potential OHV use welfare impacts (the potential efficiency 
impacts minus the potential administrative and project modification 
costs) associated with critical habitat Unit 2 (Subunits 2A and 2B) 
ranges between zero and $113 million and accounts for approximately 93 
percent of the potential economic impacts.
    In addition to economic impacts quantified in the FEA, designating 
critical habitat in the Dunes area is likely to result in a number of 
costs for which we were not able calculate dollar amounts; for example, 
the cost of lost recreational opportunities, and decreased quality of 
recreation in areas not affected by potential closures. These costs 
could potentially be incurred in any of the proposed critical habitat 
units, but for reasons discussed in more detail below, we believe the 
benefits of including Unit 2 in the critical habitat designation are 
far outweighed by these costs. Thus, after weighing the benefits of 
including versus the benefits of excluding Unit 2, which includes both 
the Gecko and Glamis Management Areas, we are excluding Unit 2 from the 
final critical habitat designation for Astragalus magdalenae var. 
peirsonii under section 4(b)(2) of the Act.
    A detailed analysis of our exclusion of these lands under section 
4(b)(2) of the Act is provided in the paragraphs that follow.

Additional Benefits of Inclusion

    In addition to the general benefits of designating critical habitat 
outlined above in ``Benefits of Designating Critical Habitat,'' the 
added protection the species and its critical habitat will receive 
under section 7(a)(2) of the Act is the primary benefit of including 
Unit 2 (Subunits 2A and 2B) in the final critical habitat designation 
for Astragalus magdalenae var. peirsonii. Unit 2 is located entirely 
within Federal lands managed by the BLM. Section 7(a)(2) of the Act 
requires Federal agencies to consult on any action authorized, funded, 
or carried out by such agency to insure that the action will not 
jeopardize a listed species or destroy or adversely modify its critical 
habitat. Therefore, because virtually all actions on Federal land will 
have a Federal nexus, the benefit of consultation under section 7(a)(2) 
of the Act is greatest on Federal lands such as the lands in Unit 2, 
when the biological factors are otherwise comparable on non-Federal 
lands.
    The management implications of a designation of critical habitat 
for this unit range from no change to full closure. Whether critical 
habitat designation will result in closures of portions of the ISDRA is 
dependent on future management decisions of the BLM and the outcome of 
the section 7 consultation on BLM's Imperial Sand Dunes Recreation Area 
Management Plan; however the inclusion of this unit in the critical 
habitat designation significantly increases the possibility that a 
primary management objective of the unit will be A. m. var. peirsonii 
recovery.
    It is important to note, however, that even in the absence of a 
critical habitat designation, Unit 2 will not be subject to 
development, or any other impact that is expected to permanently 
destroy Astragalus magdalenae var. peirsonii habitat; the main impact 
in this area has been and will be OHV use, and A. m. var. peirsonii has 
persisted over time in Unit 2 despite consistent OHV use in the area. 
While OHV use has been shown to potentially cause density reduction in 
A. m. var. peirsonii (Groom et al. 2007; USFWS 2007), A. m. var. 
peirsonii can continue to persevere at reduced density levels. 
Including Unit 2 in the critical habitat designation would be expected 
to benefit the species and contribute to the species' conservation by 
likely reducing OHV impacts within the unit. However, exclusion of Unit 
2 would not result in the extirpation of A. m. var. peirsonii in the 
area, and plants could persist at sufficient densities to contribute to 
genetic diversity and maintain gene flow between adjacent units to the 
northwest and southeast. Thus, the area would still be expected to 
contribute to the overall conservation of the species.

Benefits of Exclusion

    We have identified two major benefits to excluding Unit 2 from the 
final Astragalus magdalenae var. peirsonii critical habitat 
designation: (1) Virtually eliminating the potential economic impacts 
estimated in the FEA and (2) minimizing the impact to the significant 
social benefits derived from recreating in the area.
    The present value upper bound efficiency impacts to OHV recreation 
estimated in the FEA range from $81.4 million to $89.0 million using a 
3 percent discount rate ($113 million to $121 million in undiscounted 
dollars). Upper bound regional economic impacts range from $15.8 
million to $34.0 million in total output and 345 to 743 jobs. In 
addition, the present value upper bound project modifications are 
forecast to total $3.11 million using a 7

[[Page 8774]]

percent discount rate ($5.88 million in undiscounted dollars) over 20 
years. This includes the cost to BLM to install and maintain signage 
and enforce the potential closure of portions of critical habitat in 
the ISDRA. Excluding Unit 2 will potentially reduce virtually all of 
the economic impacts estimated by the final FEA.
    Section 102(a) of the Federal Land Policy and Management Act of 
1976, 43 U.S.C. 1701 et seq., the law which defines and details the 
mission of the BLM, states, ``The Congress declares that it is the 
policy of the United States that--(8) the public lands be managed in a 
manner that will protect the quality of scientific, scenic, historical, 
ecological, environmental, air and atmospheric, water resource, and 
archeological values; that, where appropriate, will preserve and 
protect certain public lands in their natural condition; that will 
provide food and habitat for fish and wildlife and domestic animals; 
and that will provide for outdoor recreation and human occupancy and 
use.'' The BLM is thereby charged with managing the federal lands under 
its purview in a manner that advances each of the above uses as 
appropriate. Thus, in developing and implementing its Recreation Area 
Management Plan for the ISDRA, BLM must balance the responsibility to 
provide protection for ecological resources, such as Astragalus 
magdalenae var. peirsonii and its habitat, with its mission to provide 
recreational opportunities, such as OHV use.
    The ISDRA comprises the largest mass of sand dunes in the state of 
California, and is recognized as a world-class OHV recreational area 
because of the exceptional OHV recreational opportunities it presents 
(BLM 1987). The ISDRA does support other recreational activities, such 
as hiking and horseback riding, but OHV use is by far the most 
prevalent recreational activity taking place in the active dunes of the 
ISDRA. The ISDRA provides a unique recreation opportunity for those who 
participate in OHV activities, and there are significant social 
benefits to excluding Unit 2 from the final critical habitat 
designation. Numerous members of the public and groups representing 
thousands of OHV users submitted comments during the comment period for 
the proposed revised critical habitat rule and the DEA expressing how 
highly they value recreating in the Gecko and Glamis Management Areas 
(which include Unit 2). For example, the American Sand Association, a 
non-profit organization representing approximately 30,500 members, 
stated in its comments on the proposed revised critical habitat rule 
and the DEA that if OHV users could not reach preferred recreational 
areas from the camping areas along Gecko road, their incentive to visit 
the ISDRA at all will be greatly diminished. Other commenters stated 
that if engaging in OHV recreation at the Dunes were to become 
infeasible, it would result in lost opportunities to enjoy an activity 
they consider a tradition with family and friends. This area is by far 
the most heavily used by visitors to the ISDRA; an estimated 400,474 
people visited the area during the 2006 fiscal year, while an estimated 
275,202 people visited the next most heavily used area (Buttercup) 
(BLM, 2006a). OHV users camp in the campgrounds along Gecko Road and 
use the nearby staging areas to prepare for OHV recreation in the dunes 
to the east. If Unit 2 is included in the designation and the area is 
subsequently closed to OHV use, such a management response by BLM would 
likely result in the access to these dunes being cut off along roughly 
75 percent of the length of Gecko Management Area. As stated above, 
such a closure would likely reduce the number of trips OHV recreators 
make to the dunes annually, or cause individuals to stop visiting 
altogether, resulting in lost opportunities to enjoy an activity they 
consider a tradition with family and friends. Although we were not able 
to quantify this cost in the FEA, we are aware that closure of Unit 2 
to OHV use would constitute a significant loss to those who regularly 
recreate there.
    Thus, we believe the recreational benefits offered by the ISDRA is 
an ``other relevant impact'' which is most appropriate to be considered 
when making decisions that will affect accessibility of the Dunes to 
OHV recreators. While special consideration of a particular 
recreational land use may not be appropriate in most areas where 
habitat and species preservation and recovery are an issue, we believe 
that that the ISDRA presents a situation where impacts to recreation in 
the area should be given significant weight in our balancing analysis 
under section 4(b)(2) of the Act.

Benefits of Exclusion Outweigh Benefits of Inclusion

    The primary benefits of including Unit 2 are related to the likely 
greater level of conservation management of Astragalus magdalenae var. 
peirsonii in the unit due to the regulatory implications of critical 
habitat, and the contribution of that management towards species 
recovery. Although A. m. var. peirsonii would not receive the full 
conservation benefit that could be achieved by the inclusion of Unit 2 
in the critical habitat designation, we still expect this area to 
contribute to the genetic diversity, gene flow between adjacent units 
to the northwest and southeast, and the overall conservation of the 
species. In contrast, the inclusion of Unit 2 in the critical habitat 
designation would likely result in disproportionately high economic and 
significant social impacts in this area relative to the impacts of the 
overall critical habitat designation. Unit 2 contains approximately 8.5 
percent of the total observed occurrences of A. m. var. peirsonii 
within the proposed revised critical habitat, while over 90 percent of 
the potential incremental economic costs associated with the proposed 
revised critical habitat designation, and the majority of the 
unquantifiable impacts associated with the proposal, are attributed to 
Unit 2.
    Therefore, based on the above discussions, we have determined that 
the benefits of excluding Unit 2 (Subunits 2A and 2B) from this 
critical habitat designation outweigh the benefits of including the 
unit. Unit 2 will still be subject to all other provisions of the Act, 
including the requirement that no Federal actions jeopardize the 
continued existence of the species.

Exclusion Will Not Result in Extinction of the Species

    We have determined that the exclusion of the lands in Unit 2 will 
not result in the extinction of Astragalus magdalenae var. peirsonii 
for several reasons: The area excluded encompasses approximately 8.5 
percent of the total observed population within the proposed revised 
critical habitat boundaries and approximately 7.8 percent of the total 
observed population in the Dunes; the species still occupies Unit 2 
despite the OHV activity in portions of the area; and, because Unit 2 
is occupied by A. m. var. peirsonii, BLM must consult with us under 
section 7(a)(2) of the Act, on its actions occurring within Unit 2 
(including resource management) that may affect the species, to insure 
that such actions will not jeopardize the continued existence of the 
species.

Required Determinations

Regulatory Planning and Review

    In accordance with E.O. 12866, we evaluate four parameters in 
determining whether a rule is significant. The four parameters that 
would result in a designation of significant under E.O. 12866 are:

[[Page 8775]]

    (a) The rule would have an annual economic effect of $100 million 
or more or adversely affect an economic sector, productivity, jobs, the 
environment, or other units of the government.
    (b) The rule would create inconsistencies with other Federal 
agencies' actions.
    (c) The rule would materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients.
    (d) The rule would raise novel legal or policy issues.
If OMB requests to informally review a rule designating critical 
habitat for a species, we consider that rule to raise novel legal and 
policy issues. Because no other Federal agencies designate critical 
habitat, the designation of critical habitat will not create 
inconsistencies with other agencies' actions. We use the economic 
analysis of the critical habitat designation to evaluate the potential 
effects related to the other parameters of E.O. 12866 and to make a 
determination as to whether the regulation may be significant under 
parameter (a) or (c) listed above.
    Based on the economic analysis of the critical habitat designation, 
we have determined that the revised designation of critical habitat for 
Astragalus magdalenae var. peirsonii will not result in an annual 
effect on the economy of $100 million or more or affect the economy in 
a material way. Based on previous critical habitat designations and the 
economic analysis, we believe this rule will not materially affect 
entitlements, grants, user fees, loan programs, or the rights and 
obligations of their recipients. OMB has requested to informally review 
this rule, and thus this action may raise novel legal or policy issues. 
In accordance with the provisions of E.O. 12866, this rule is 
considered significant.
    E.O. 12866 also 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 an agency 
determines that the Federal regulatory action is appropriate, the 
agency must consider alternative regulatory approaches. Because the 
determination of critical habitat is a statutory requirement pursuant 
to the Act, we must 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. We believe that the evaluation of the inclusion or 
exclusion of particular areas, or a combination of both, constitutes 
our regulatory alternative analysis for designations.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA) (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), 
whenever an agency is required to publish a notice of rulemaking for 
any proposed or final rule, it must prepare and make available for 
public comment a regulatory flexibility analysis that describes the 
effect of the rule on small entities (i.e., small businesses, small 
organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of an agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. The SBREFA amended the RFA to 
require Federal agencies to provide a statement of factual basis for 
certifying that the rule will not have a significant economic impact on 
a substantial number of small entities. SBREFA amended the RFA to 
require Federal agencies to provide a certification statement of the 
factual basis for certifying that the rule will not have a significant 
economic impact on a substantial number of small entities.
    Small entities include small organizations, such as independent 
nonprofit organizations; small governmental jurisdictions, including 
school boards and city and town governments that serve fewer than 
50,000 residents; as well as small businesses. Small businesses include 
manufacturing and mining concerns with fewer than 500 employees, 
wholesale trade entities with fewer than 100 employees, retail and 
service businesses with less than $5 million in annual sales, general 
and heavy construction businesses with less than $27.5 million in 
annual business, special trade contractors doing less than $11.5 
million in annual business, and agricultural businesses with annual 
sales less than $750,000. To determine if potential economic impacts to 
these small entities are significant, we consider the types of 
activities that might trigger regulatory impacts under this rule, as 
well as the types of project modifications that may result. In general, 
the term ``significant economic impact'' is meant to apply to a typical 
small business firm's business operations.
    To determine if this revised designation of critical habitat for 
Astragalus magdalenae var. peirsonii would affect a substantial number 
of small entities, we considered the number of small entities affected 
within particular types of economic activities (e.g., OHV recreation). 
We considered each industry or category individually to determine if 
certification is appropriate. However, the SBREFA does not explicitly 
define ``substantial number'' or ``significant economic impact.'' 
Consequently, to assess whether a ``substantial number'' of small 
entities is affected by this designation, this analysis considers the 
relative number of small entities likely to be impacted in an area. In 
some circumstances, especially with critical habitat designations of 
limited extent, we may aggregate across all industries and consider 
whether the total number of small entities affected is substantial. In 
estimating the numbers of small entities potentially affected, we also 
considered whether their activities have any Federal involvement.
    Designation of critical habitat only affects activities conducted, 
funded, permitted, or authorized by Federal agencies; non-Federal 
activities are not affected by the designation. In areas where the 
species is present, Federal agencies already are required to consult 
with us under section 7 of the Act on activities they fund, permit, or 
implement that may affect Astragalus magdalenae var. peirsonii. Federal 
agencies also must consult with us if their activities may affect 
critical habitat. Designation of critical habitat, therefore, could 
result in an additional economic impact on small entities due to the 
requirement to reinitiate consultation for ongoing Federal activities.
    In general, two different mechanisms in section 7 consultations 
could lead to additional regulatory requirements for a project's impact 
on Astragalus magdalenae var. peirsonii and its habitat. First, if we 
conclude, in a biological opinion, that a proposed action is likely to 
jeopardize the continued existence of a species or adversely modify its 
critical habitat, we can offer ``reasonable and prudent alternatives.'' 
Reasonable and prudent alternatives are alternative actions that can be 
implemented in a manner consistent with the scope of the Federal 
agency's legal authority and jurisdiction, that are economically and 
technologically feasible, and that would

[[Page 8776]]

avoid jeopardizing the continued existence of listed species or result 
in adverse modification of critical habitat. A Federal agency and an 
applicant may elect to implement a reasonable and prudent alternative 
associated with a biological opinion that has found jeopardy or adverse 
modification of critical habitat. An agency or applicant could 
alternatively choose to seek an exemption from the requirements of the 
Act or proceed without implementing a reasonable and prudent 
alternative. However, unless an exemption were obtained, the Federal 
agency or applicant would be at risk of violating section 7(a)(2) of 
the Act if it chose to proceed without implementing a reasonable and 
prudent alternative.
    Second, if we find that a proposed action is not likely to 
jeopardize the continued existence of a listed animal or plant species, 
we may identify discretionary conservation recommendations designed to 
minimize or avoid the adverse effects of a proposed action on listed 
species or critical habitat, help implement recovery plans, or to 
develop information that could contribute to the recovery of the 
species.
    Based on our experience with consultations under section 7 of the 
Act for all listed species, virtually all projects--including those 
that, in their initial proposed form, would result in jeopardy or 
adverse modification determinations in section 7 consultations--can be 
implemented successfully with, at most, the adoption of a reasonable 
and prudent alternative. Reasonable and prudent alternatives, by 
definition, must be economically feasible and within the scope of 
authority of the Federal agency involved in the consultation. We can 
only describe the general kinds of actions that may be identified in 
future reasonable and prudent alternatives. These are based on our 
understanding of the needs of the species and the threats it faces, as 
described in the final listing rule and this revised critical habitat 
designation. Within the final critical habitat units, the types of 
Federal actions or authorized activities that we have identified as 
potential concerns are:
    (1) Development of the Recreational Area Management Plan for the 
Imperial Sand Dunes Recreation Area by the Bureau of Land Management;
    (2) Issuance of permits for private actions (e.g., filming) on 
Federal lands within the Dunes by the Bureau of Land Management;
    (3) Modifications to the All American Canal by the Bureau of 
Reclamation; and
    (4) Construction and maintenance of facilities by the U.S. Border 
Patrol.
    The most likely Federal involvement would be through Federal 
projects and permits for private actions on Federal lands.
    It is likely that the Bureau of Land Management or other project 
proponent could modify a project or take measures to protect Astragalus 
magdalenae var. peirsonii. The kinds of actions that may be included if 
future reasonable and prudent alternatives become necessary include 
conservation set-asides, management of competing nonnative species, 
restoration of degraded habitat, and regular monitoring. These are 
based on our understanding of the needs of the species and the threats 
it faces, as described in the final listing rule and proposed critical 
habitat designation. These measures are not likely to result in a 
significant economic impact to project proponents.
    In our economic analysis of this proposed designation, we evaluated 
the potential economic effects on small business entities resulting 
from conservation actions related to proposed designation of critical 
habitat for Astragalus magdalenae var. peirsonii. In our analysis of 
impacts to small entities (appendix A of economic analysis), we 
estimated that a total of up to 827 small entities in OHV-related 
sectors could be impacted by critical habitat designation, with 398 of 
those businesses in Imperial County and 429 in Yuma County. Exhibit A-4 
of our Economic Analysis (on page A-8) presents an estimated ``per 
business impact to small entities.'' In Imperial County, the average 
impact per small entity is estimated to be $62,200, which is 4.53 
percent of the estimated average per business annual sales of 
$1,370,000. In Yuma County the average impact per small entity is 
estimated to be $10,400, which is 0.72 percent of the estimated average 
per business annual sales of $1,440,000. The composite average for both 
Counties is estimated to be $35,300 per small entity, which is 2.50 
percent of the estimated average per business annual sales of 
$1,410,000. Although a number of small entities will be affected by the 
designation, we do not believe the economic impact will be significant.
    The potential impact to small entities due to the critical habitat 
designation should be lessened by the exclusion of Unit 2. As discussed 
above, approximately 93 percent of the potential economic costs 
associated with the proposed critical habitat are attributed to Unit 2 
($113,000,000 estimated upper bound). Costs to small businesses make up 
86 percent of the potential economic impacts associated with the 
proposed critical habitat in Unit 2. Exclusion of Unit 2 should 
eliminate about $97,000,000 of the estimated $104,060,000 cost to small 
businesses (about 93 percent). This exclusion will greatly reduce 
economic impacts to small entities.
    In summary, we have considered whether this final designation of 
critical habitat for Astragalus magdalenae var. peirsonii would result 
in a significant economic impact on a substantial number of small 
entities. Based on the reasoning discussed above, we certify that the 
designation of critical habitat for A. m. var. peirsonii will not 
result in a significant impact on a substantial number of small 
business entities. Please see the ``Economic Analysis'' section above, 
the draft economic analysis, and the final economic analysis for a more 
detailed discussion of potential economic impacts. A regulatory 
flexibility analysis is not required.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make 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, or 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 [T]ribal 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 [T]ribal 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

[[Page 8777]]

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 non-Federal 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 onto State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments, because the majority of the lands (98 
percent) involved in the proposed designation are federally owned. As 
such, Small Government Agency Plan is not required.

Takings

    In accordance with E.O. 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
designating critical habitat for Astragalus magdalenae var. peirsonii 
for this rule in a takings implications assessment. The takings 
implications assessment concludes that this designation of critical 
habitat for A. m. var. peirsonii does not pose significant takings 
implications.

Federalism

    In accordance with Executive Order 13132 (Federalism), the rule 
does not have significant Federalism effects. A Federalism assessment 
is not required. In keeping with Department of the Interior and 
Department of Commerce policy, we requested information from, and 
coordinated development of, this final revised critical habitat 
designation with appropriate State resource agencies in California; 
however, we did not receive any comments from State or local agencies. 
The majority of the lands (98 percent) involved in the designation are 
federally owned and, therefore, the designation has little incremental 
impact on State and local governments and their activities. The 
designation may have some benefit to these governments in that the 
areas that contain the physical and biological features essential to 
the conservation of the species are more clearly defined, and the 
primary constituent elements of the habitat necessary to the 
conservation of the species are specifically identified. While making 
this definition and identification does not alter where and what 
federally sponsored activities may occur, it may assist these local 
governments in long-range planning (rather than waiting for case-by-
case section 7 consultations to occur).

Civil Justice Reform

    In accordance with E.O. 12988 (Civil Justice Reform), the Office of 
the Solicitor has determined that the rule does not unduly burden the 
judicial system and that it meets the requirements of sections 3(a) and 
3(b)(2) of the Order. We are designating critical habitat in accordance 
with the provisions of section 4 of the Act. This final revised 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 Astragalus magdalenae var. 
peirsonii.

Paperwork Reduction Act of 1995

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor, and 
a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

National Environmental Policy Act (NEPA)

    It is our position that, outside the jurisdiction of the Circuit 
Court of the United States for the Tenth Circuit, we do not need to 
prepare environmental analyses as defined by the NEPA (42 U.S.C. 4321 
et seq.) in connection with designating critical habitat under the Act. 
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 by the Circuit Court of the United States for the Ninth 
Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. 
denied 516 U.S. 1042 (1996)).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. We have determined that 
there are no Tribal lands that meet the definition of critical habitat 
for Astragalus magdalenae var. peirsonii. Therefore, critical habitat 
for A. m. var. peirsonii has not been designated on Tribal lands.

Energy Supply, Distribution, or Use

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211; Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use) 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. Based on our economic analysis, energy-related impacts 
associated with Astragalus magdalenae var. peirsonii critical habitat 
designation are not expected. As noted by BLM, the likelihood of any 
energy-related activity occurring within the critical habitat is 
minimal for a number of reasons. First, utility corridors exist outside 
of the critical habitat area. Second, areas of the ISDRA likely to 
experience development are not included in the designation. Third, the 
construction and maintenance of projects (such as utility lines) away 
from current roads, canals, and railways and through the central, more 
remote portions of the Dunes is likely to be economically infeasible. 
Thus, 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.

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).

[[Page 8778]]

Author(s)

    The primary authors of this rulemaking are staff of the Carlsbad 
Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of 
the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

0
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.


0
2. In ;17.96(a), revise the entry for ``Family Fabaceae: Astragalus 
magdalenae var. peirsonii (Peirson's Milk-Vetch)'' to read as follows:


Sec.  17.96  Critical habitat--plants.

    (a) Flowering plants.
* * * * *
    Family Fabaceae: Astragalus magdalenae var. peirsonii (Peirson's 
Milk-Vetch)
    (1) Critical habitat units are depicted for Imperial County, 
California, on the maps below.
    (2) The primary constituent elements of critical habitat for 
Astragalus magdalenae var. peirsonii are:
    (i) West and/or northwest-facing sides of bowls, swales, and slopes 
consisting of Rositas fine sands within intact, active sand dune 
systems (defined as sand areas that are subject to sand-moving winds) 
in the existing range of the species that provide space needed for 
individual and population growth, including sites for germination, 
reproduction, seed dispersal, seed bank, and pollination;
    (ii) The associated co-adapted psammophytic scrub plant community 
characterized by Croton wigginsii, Eriogonum deserticola, Helianthus 
niveus ssp. tephrodes, Palafoxia arida var. gigantea, Pholisma sonorae, 
Tiquilia plicata, Petalonyx thurberi, and Panicum urvilleanum that 
provides habitat for insect pollinators, particularly the white-faced 
digger bee (Habropoda pallida), required for reproduction; and
    (iii) Areas within intact, active sand dune systems between 
occupied bowls, swales, and slopes that allow for pollinator movement 
and wind dispersal of fruit and seeds.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
the effective date of this rule.
    (4) Critical habitat map units. Data layers defining map units were 
created using U.S. Geological Survey (USGS) 1:24,000 quadrangles.
    (5) Note: Index map follows:
BILLING CODE 4310-55-P

[[Page 8779]]

[GRAPHIC] [TIFF OMITTED] TR14FE08.000

BILLING CODE 4310-55-C

[[Page 8780]]

    (6) Unit 1: Mammoth Wash/North Algodones Dunes Wilderness, Imperial 
County, California.
    (i) Subunit 1A, Mammoth Wash, Imperial County, California. From 
USGS 1:24,000 quadrangles Amos and Tortuga, lands bounded by the 
following UTM NAD83 coordinates (E, N): 657000, 3668000; 657300, 
3668000; 657300, 3667900; 657400, 3667900; 657400, 3667800; 657500, 
3667800; 657500, 3667700; 657600, 3667700; 657600, 3667400; 657800, 
3667400; 657800, 3667200; 657900, 3667200; 657900, 3667100; 658000, 
3667100; 658000, 3666900; 658100, 3666900; 658100, 3666700; 658200, 
3666700; 658200, 3666500; 658100, 3666500; 658100, 3666400; 658200, 
3666400; 658200, 3666300; 658300, 3666300; 658300, 3666200; 658400, 
3666200; 658400, 3665900; 657900, 3665900; 657900, 3666000; 657700, 
3666000; 657700, 3666100; 657600, 3666100; 657600, 3666200; 657400, 
3666200; 657400, 3666500; 657300, 3666500; 657300, 3666600; 657100, 
3666600; 657100, 3667000; 657000, 3667000; 657000, 3667200; 656900, 
3667200; 656900, 3667400; 656800, 3667400; 656800, 3667500; 656700, 
3667500; 656700, 3667700; 656800, 3667700; 656800, 3667800; 657000, 
3667800; thence returning to 657000, 3668000.
    (ii) Subunit 1B, Mammoth Wash, Imperial County, California. From 
USGS 1:24,000 quadrangle Amos, lands bounded by the following UTM NAD83 
coordinates (E, N): 658700, 3665900; 659100, 3665900; 659100, 3665800; 
659200, 3665800; 659200, 3665500; 659100, 3665500; 659100, 3665400; 
659300, 3665400; 659300, 3665300; 659600, 3665300; 659600, 3665200; 
659700, 3665200; 659700, 3665100; 659800, 3665100; 659800, 3665000; 
659700, 3665000; 659700, 3664800; 659600, 3664800; 659600, 3664600; 
659500, 3664600; 659500, 3664500; 659800, 3664500; 659800, 3664600; 
659900, 3664600; 659900, 3664800; 660300, 3664800; 660300, 3664300; 
660200, 3664300; 660200, 3664200; 660300, 3664200; 660300, 3664100; 
660600, 3664100; 660600, 3663700; 660700, 3663700; 660700, 3663600; 
660900, 3663600; 660900, 3663500; 661000, 3663500; 661000, 3663400; 
661200, 3663400; 661200, 3663000; 661300, 3663000; 661300, 3662900; 
661600, 3662900; 661600, 3662800; 661700, 3662800; 661700, 3662600; 
662000, 3662600; 662000, 3662500; 662600, 3662500; 662600, 3662300; 
662500, 3662300; 662500, 3662200; 662300, 3662200; 662300, 3662000; 
662600, 3662000; 662600, 3661900; 663000, 3661900; 663000, 3661700; 
663100, 3661700; 663100, 3661500; 663200, 3661500; 663200, 3661200; 
663100, 3661200; 663100, 3661100; 663000, 3661100; 663000, 3661000; 
662700, 3661000; 662700, 3660800; 662500, 3660800; 662500, 3660900; 
662400, 3660900; 662400, 3661100; 661900, 3661100; 661900, 3661300; 
661800, 3661300; 661800, 3661600; 661700, 3661600; 661700, 3662100; 
661300, 3662100; 661300, 3662000; 661100, 3662000; 661100, 3662400; 
661000, 3662400; 661000, 3662300; 660700, 3662300; 660700, 3662500; 
660500, 3662500; 660500, 3662600; 660400, 3662600; 660400, 3662700; 
660300, 3662700; 660300, 3663100; 660200, 3663100; 660200, 3663400; 
659900, 3663400; 659900, 3663500; 659800, 3663500; 659800, 3663800; 
659600, 3663800; 659600, 3664200; 659500, 3664200; 659500, 3664300; 
659400, 3664300; 659400, 3664100; 659100, 3664100; 659100, 3664200; 
659000, 3664200; 659000, 3664500; 658900, 3664500; 658900, 3664800; 
658800, 3664800; 658800, 3664700; 658600, 3664700; 658600, 3664800; 
658500, 3664800; 658500, 3665200; 658300, 3665200; 658300, 3665400; 
658000, 3665400; 658000, 3665500; 657900, 3665500; 657900, 3665700; 
658600, 3665700; 658600, 3665800; 658700, 3665800; thence returning to 
658700, 3665900.
    (iii) Subunit 1C, North Algodones Wilderness Area, Imperial County, 
California. From USGS 1:24,000 quadrangles Acolita and Amos, lands 
bounded by the following UTM NAD83 coordinates (E, N): 663400, 3661100; 
663700, 3661100; 663700, 3661000; 663800, 3661000; 663800, 3660900; 
664000, 3660900; 664000, 3660800; 664100, 3660800; 664100, 3660700; 
664200, 3660700; 664200, 3660600; 664400, 3660600; 664400, 3660300; 
664500, 3660300; 664500, 3659900; 664600, 3659900; 664600, 3659800; 
664700, 3659800; 664700, 3659700; 664800, 3659700; 664800, 3659600; 
665000, 3659600; 665000, 3659300; 665200, 3659300; 665200, 3659200; 
665300, 3659200; 665300, 3659100; 665400, 3659100; 665400, 3658900; 
665600, 3658900; 665600, 3658400; 665800, 3658400; 665800, 3658300; 
665900, 3658300; 665900, 3658100; 666200, 3658100; 666200, 3657900; 
666100, 3657900; 666100, 3657800; 666000, 3657800; 666000, 3657900; 
665400, 3657900; 665400, 3658000; 665300, 3658000; 665300, 3658200; 
665200, 3658200; 665200, 3658300; 665000, 3658300; 665000, 3658700; 
664800, 3658700; 664800, 3658900; 664700, 3658900; 664700, 3659000; 
664300, 3659000; 664300, 3659200; 664100, 3659200; 664100, 3659300; 
663900, 3659300; 663900, 3659400; 663800, 3659400; 663800, 3659500; 
663700, 3659500; 663700, 3659800; 663600, 3659800; 663600, 3660000; 
663500, 3660000; 663500, 3660100; 663400, 3660100; 663400, 3660200; 
663300, 3660200; 663300, 3660300; 663100, 3660300; 663100, 3660500; 
663000, 3660500; 663000, 3660800; 663100, 3660800; 663100, 3660900; 
663400, 3660900; thence returning to 663400, 3661100.
    (iv) Subunit 1D, North Algodones Wilderness Area, Imperial County, 
California. From USGS 1:24,000 quadrangles Acolita and Glamis NW, lands 
bounded by the following UTM NAD83 coordinates (E, N): 666500, 3657900; 
666700, 3657900; 666700, 3657700; 666800, 3657700; 666800, 3657600; 
667100, 3657600; 667100, 3657300; 667300, 3657300; 667300, 3657000; 
667600, 3657000; 667600, 3656600; 668100, 3656600; 668100, 3656400; 
668300, 3656400; 668300, 3656000; 668700, 3656000; 668700, 3655900; 
668800, 3655900; 668800, 3655800; 669500, 3655800; 669500, 3655700; 
669600, 3655700; 669600, 3655800; 669800, 3655800; 669800, 3655500; 
669600, 3655500; 669600, 3655400; 669400, 3655400; 669400, 3655300; 
669300, 3655300; 669300, 3655100; 669600, 3655100; 669600, 3655000; 
669500, 3655000; 669500, 3654900; 669700, 3654900; 669700, 3654700; 
669900, 3654700; 669900, 3654500; 670100, 3654500; 670100, 3654300; 
670200, 3654300; 670200, 3654400; 670500, 3654400; 670500, 3654300; 
670600, 3654300; 670600, 3653900; 670900, 3653900; 670900, 3653800; 
671200, 3653800; 671200, 3653400; 671300, 3653400; 671300, 3653300; 
671500, 3653300; 671500, 3653600; 671600, 3653600; 671600, 3653700; 
671800, 3653700; 671800, 3653400; 671900, 3653400; 671900, 3653300; 
672100, 3653300; 672100, 3653200; 672200, 3653200; 672200, 3653000; 
672600, 3653000; 672600, 3652600; 672700, 3652600; 672700, 3652700; 
673000, 3652700; 673000, 3652200; 673100, 3652200; 673100, 3652100; 
673700, 3652100; 673700, 3651800; 673400, 3651800; 673400, 3651700; 
673300, 3651700; 673300, 3651600; 673400, 3651600; 673400, 3651500; 
673300, 3651500; 673300, 3651400; 673100, 3651400; 673100, 3651300; 
672900, 3651300; 672900, 3651000; 672700, 3651000; 672700, 3650800; 
672600, 3650800; 672600, 3650700; 672400, 3650700; 672400, 3650800; 
672300, 3650800; 672300, 3651300; 672200, 3651300; 672200, 3651400; 
671600, 3651400; 671600, 3651500; 671500, 3651500; 671500,

[[Page 8781]]

3652000; 671400, 3652000; 671400, 3651900; 671200, 3651900; 671200, 
3652200; 671300, 3652200; 671300, 3652400; 671500, 3652400; 671500, 
3652600; 671400, 3652600; 671400, 3652900; 671100, 3652900; 671100, 
3653100; 670900, 3653100; 670900, 3653000; 670700, 3653000; 670700, 
3653100; 670600, 3653100; 670600, 3653200; 670400, 3653200; 670400, 
3653300; 670300, 3653300; 670300, 3653500; 670100, 3653500; 670100, 
3653700; 669800, 3653700; 669800, 3653900; 669500, 3653900; 669500, 
3653800; 669300, 3653800; 669300, 3653900; 669200, 3653900; 669200, 
3654000; 669100, 3654000; 669100, 3654200; 669400, 3654200; 669400, 
3654100; 669800, 3654100; 669800, 3654400; 669600, 3654400; 669600, 
3654500; 669500, 3654500; 669500, 3654700; 669400, 3654700; 669400, 
3654800; 669200, 3654800; 669200, 3654900; 669100, 3654900; 669100, 
3655000; 668900, 3655000; 668900, 3655100; 668700, 3655100; 668700, 
3655300; 668600, 3655300; 668600, 3655400; 668500, 3655400; 668500, 
3655300; 668300, 3655300; 668300, 3655400; 668100, 3655400; 668100, 
3655500; 668000, 3655500; 668000, 3655600; 667900, 3655600; 667900, 
3656100; 667700, 3656100; 667700, 3656000; 667400, 3656000; 667400, 
3656100; 667000, 3656100; 667000, 3656300; 666600, 3656300; 666600, 
3656400; 666500, 3656400; 666500, 3656800; 666300, 3656800; 666300, 
3657000; 666000, 3657000; 666000, 3657100; 665900, 3657100; 665900, 
3657400; 666200, 3657400; 666200, 3657600; 666300, 3657600; 666300, 
3657800; 666500, 3657800; thence returning to 666500, 3657900.
    (v) Note: Map of Unit 1, Mammoth Wash/North Algodones Dunes 
Wilderness, follows:
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    (7) Unit 3: Adaptive Management Area/Ogilby, Imperial County, 
California.
    (i) Subunit 3A, AMA, Imperial County, California. From USGS 
1:24,000 quadrangles Cactus, Glamis and Glamis SE, lands bounded by the 
following UTM NAD83 coordinates (E, N): 682600, 3639800; 682900, 
3639800; 682900, 3639700; 683100, 3639700; 683100, 3639600; 683200, 
3639600; 683200, 3639400; 683400, 3639400; 683400, 3639100; 683100, 
3639100; 683100, 3639000; 683200, 3639000; 683200, 3638800; 683300, 
3638800; 683300, 3638700; 683900, 3638700; 683900, 3638600; 684100, 
3638600; 684100, 3638500; 684300, 3638500; 684300, 3638400; 684400, 
3638400; 684400, 3638100; 684100, 3638100; 684100, 3637700; 684300, 
3637700; 684300, 3637400; 684600, 3637400; 684600, 3637100; 684700, 
3637100; 684700, 3637000; 685000, 3637000; 685000, 3637100; 685300, 
3637100; 685300, 3637000; 685400, 3637000; 685400, 3636800; 685100, 
3636800; 685100, 3636400; 685200, 3636400; 685200, 3636300; 685400, 
3636300; 685400, 3636100; 685700, 3636100; 685700, 3636000; 685900, 
3636000; 685900, 3635900; 686400, 3635900; 686400, 3635700; 686700, 
3635700; 686700, 3635200; 687300, 3635200; 687300, 3635300; 687500, 
3635300; 687500, 3635400; 687600, 3635400; 687600, 3635500; 687700, 
3635500; 687700, 3635600; 687900, 3635600; 687900, 3635500; 688000, 
3635500; 688000, 3635300; 687700, 3635300; 687700, 3635000; 687600, 
3635000; 687600, 3634700; 687700, 3634700; 687700, 3634500; 687800, 
3634500; 687800, 3634300; 687900, 3634300; 687900, 3634100; 688100, 
3634100; 688100, 3634000; 688200, 3634000; 688200, 3633900; 688300, 
3633900; 688300, 3633700; 688400, 3633700; 688400, 3633600; 688500, 
3633600; 688500, 3633500; 688600, 3633500; 688600, 3633300; 688500, 
3633300; 688500, 3633200; 688400, 3633200; 688400, 3632900; 688500, 
3632900; 688500, 3632600; 688600, 3632600; 688600, 3632200; 688700, 
3632200; 688700, 3632100; 688800, 3632100; 688800, 3631900; 688900, 
3631900; 688900, 3631800; 688800, 3631800; 688800, 3631700; 688900, 
3631700; 688900, 3631500; 689500, 3631500; 689500, 3631300; 689800, 
3631300; 689800, 3631000; 689500, 3631000; 689500, 3630600; thence 
southwestward to y-coordinate 3630000 at the Management Area boundary; 
thence northwestward along the Management Area boundary to x-coordinate 
686700; thence to 686700, 3632800; 686600, 3632800; 686600, 3632900; 
686500, 3632900; 686500, 3633000; 686400, 3633000; 686400, 3633400; 
686300, 3633400; 686300, 3633500; 686200, 3633500; 686200, 3633600; 
686100, 3633600; 686100, 3633800; 685900, 3633800; 685900, 3633900; 
685800, 3633900; 685800, 3634000; 685700, 3634000; 685700, 3634200; 
685600, 3634200; 685600, 3634300; 685300, 3634300; 685300, 3634700; 
685200, 3634700; 685200, 3634800; 685000, 3634800; 685000, 3634900; 
684900, 3634900; 684900, 3635200; 684800, 3635200; 684800, 3635300; 
684700, 3635300; 684700, 3635400; 684500, 3635400; 684500, 3635500; 
684400, 3635500; 684400, 3635600; 684300, 3635600; 684300, 3635800; 
684100, 3635800; 684100, 3635900; 684000, 3635900; 684000, 3636000; 
683900, 3636000; 683900, 3636100; 683500, 3636100; 683500, 3636200; 
683400, 3636200; 683400, 3636500; 683300, 3636500; 683300, 3636600; 
683200, 3636600; 683200, 3636700; 683100, 3636700; 683100, 3636800; 
682800, 3636800; 682800, 3636900; 682700, 3636900; 682700, 3637100; 
682800, 3637100; 682800, 3637500; 682300, 3637500; 682300, 3637700; 
682000, 3637700; 682000, 3638000; 681900, 3638000; 681900, 3638500; 
681600, 3638500; 681600, 3638800; 681800, 3638800; 681800, 3639000; 
681900, 3639000; 681900, 3639100; 682000, 3639100; 682000, 3639200; 
682100, 3639200; 682100, 3639300; 682500, 3639300; 682500, 3639500; 
682400, 3639500; 682400, 3639700; 682600, 3639700; thence returning to 
682600, 3639800.
    (ii) Subunit 3B, AMA/Ogilby, Imperial County, California. From USGS 
1:24,000 quadrangle Cactus, lands bounded by the following UTM NAD83 
coordinates (E, N): 691900, 3631300; 692300, 3631300; 692300, 3630800; 
691900, 3630800; 691900, 3630700; 691800, 3630700; 691800, 3630600; 
691500, 3630600; 691500, 3630500; 691200, 3630500; 691200, 3630100; 
691100, 3630100; 691100, 3629900; 691200, 3629900; 691200, 3629600; 
691100, 3629600; 691100, 3629400; 691400, 3629400; 691400, 3629700; 
691600, 3629700; 691600, 3629800; 691700, 3629800; 691700, 3629700; 
691800, 3629700; 691800, 3629500; 691700, 3629500; 691700, 3629400; 
691500, 3629400; 691500, 3629300; 691600, 3629300; 691600, 3628700; 
691700, 3628700; 691700, 3628600; thence southwestward to the 
Management Area boundary at y-coordinate 3627650; thence northwestward 
along the Management Area boundary to y-coordinate 3630000; thence 
northeastward to 689500, 3630600; thence to 689600, 3630600; 689600, 
3630500; 689700, 3630500; 689700, 3630400; 690000, 3630400; 690000, 
3630300; 690200, 3630300; 690200, 3630200; 690700, 3630200; 690700, 
3630100; 690900, 3630100; 690900, 3630400; 691000, 3630400; 691000, 
3630700; 691200, 3630700; 691200, 3630800; 691300, 3630800; 691300, 
3630900; 691500, 3630900; 691500, 3631000; 691600, 3631000; 691600, 
3631100; 691800, 3631100; 691800, 3631200; 691900, 3631200; thence 
returning to 691900, 3631300.
    (iii) Subunit 3C, Ogilby, Imperial County, California. From USGS 
1:24,000 quadrangle Cactus and Grays Well, lands bounded by the 
following UTM NAD83 coordinates (E, N): 693100, 3629300; 693400, 
3629300; 693400, 3629100; 693500, 3629100; 693500, 3628700; 693300, 
3628700; 693300, 3628600; 693200, 3628600; 693200, 3628500; 692400, 
3628500; 692400, 3628200; 692300, 3628200; 692300, 3628100; 691900, 
3628100; 691900, 3627600; 692300, 3627600; 692300, 3627500; 692800, 
3627500; 692800, 3627200; 692700, 3627200; 692700, 3627100; 692500, 
3627100; 692500, 3627000; 692600, 3627000; 692600, 3626700; 692700, 
3626700; 692700, 3626600; 693800, 3626600; 693800, 3626500; 693900, 
3626500; 693900, 3626300; 693800, 3626300; 693800, 3625700; 694400, 
3625700; 694400, 3625600; 695000, 3625600; 695000, 3625300; 694700, 
3625300; 694700, 3625200; 694400, 3625200; 694400, 3625100; 694300, 
3625100; 694300, 3625000; 694000, 3625000; 694000, 3625100; 693900, 
3625100; 693900, 3625200; 693700, 3625200; 693700, 3624500; thence 
westward to the Management Area boundary at y-coordinate 3624500; 
thence northwestward along the Management Area boundary at x-coordinate 
693000; thence to 693000, 3625400; 693100, 3625400; 693100, 3625600; 
692900, 3625600; 692900, 3625700; 692800, 3625700; 692800, 3625800; 
692700, 3625800; 692700, 3626100; 692500, 3626100; 692500, 3626300; 
692100, 3626300; 692100, 3626800; thence westward to the Management 
Area boundary at y-coordinate 3626800; thence northwestward to y-
coordinate 3627650; thence to 691700, 3628600; 692700, 3628600; 692700, 
3628700; 692800, 3628700; 692800, 3628800; 692900, 3628800; 692900, 
3628900; 693000, 3628900; 693000, 3629000; 693100, 3629000; thence 
returning to 693100, 3629300; and lands bounded by 696500, 3625500; 
696800, 3625500; 696800, 3625300; 697000, 3625300;

[[Page 8784]]

697000, 3625000; 696900, 3625000; 696900, 3624800; 696500, 3624800; 
696500, 3624600; 696300, 3624600; 696300, 3624400; 696100, 3624400; 
696100, 3624500; 695800, 3624500; 695800, 3624200; 695700, 3624200; 
695700, 3624000; 695600, 3624000; 695600, 3623900; 695400, 3623900; 
695400, 3624000; 695200, 3624000; 695200, 3623900; 695000, 3623900; 
695000, 3623800; 694600, 3623800; 694600, 3624300; 694800, 3624300; 
694800, 3624400; 694900, 3624400; 694900, 3624500; 695300, 3624500; 
695300, 3624400; 695400, 3624400; 695400, 3624600; 695600, 3624600; 
695600, 3624700; 695700, 3624700; 695700, 3624800; 696100, 3624800; 
696100, 3625000; 696300, 3625000; 696300, 3625100; 696400, 3625100; 
696400, 3625400; 696500, 3625400; thence returning to 696500, 3625500.
    (iv) Note: The map depicting Unit 3 is found at paragraph (8)(ii) 
of this entry.
    (8) Unit 4: Buttercup, Imperial County, California.
    (i) From USGS 1:24,000 quadrangle Grays Well, lands bounded by the 
following UTM NAD83 coordinates (E, N): 697900, 3622100; 698300, 
3622100; 698300, 3621900; 698200, 3621900; 698200, 3621700; 698300, 
3621700; 698300, 3621600; 698500, 3621600; 698500, 3621500; 698600, 
3621500; 698600, 3621200; 698500, 3621200; 698500, 3621100; 698400, 
3621100; 698400, 3621000; 698300, 3621000; 698300, 3620970; 697900, 
3620925; 697900, 3621000; 697800, 3621000; 697800, 3621100; 697700, 
3621100; 697700, 3621300; 697600, 3621300; 697600, 3621400; 697500, 
3621400; 697500, 3621500; 697400, 3621500; 697400, 3621800; 697600, 
3621800; 697600, 3621900; 697900, 3621900; thence returning to 697900, 
3622100.
    (ii) Note: Map of Units 3 and 4 follows:
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* * * * *

    Dated: February 1, 2008.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 08-545 Filed 2-13-08; 8:45 am]
BILLING CODE 4310-55-C