8748 Federal Register / Vol. 73, No. 31 / Thursday, February 14, 2008 / Rules and Regulations 

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. 

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 °F (30 °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 shortlived 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 

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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 offhighway 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

Year Surveyor Number of plants 

counted 

Estimated 

population 

Number of 

samples 

Effective area 

*ac) 

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 

1BLM reports cited as Willoughby. 

2Phillips reports cited as Phillips et al. or Phillips and Kennedy. 

3 Reconnaissance of unspecified area. 

4Estimated 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 

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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, dunewide 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 microhabitats 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 

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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 

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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 nitrogencontaining 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 

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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 selfincompatibility 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 semicontinuous 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 whitefaced 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 

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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-thanaverage 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 winddriven 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 

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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 pervehicle 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 OffHighway 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 

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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-vehicletrip 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 sitespecific 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 

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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 highend 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 postdesignation 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. 

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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 

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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 sitespecific 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 

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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 

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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 OffHighway 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 OffHighway 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 41258) 

2008 Final revised rule 

Unit/subunit Area (ac (ha)) Unit/subunit Area (ac (ha)) Unit/subunit Area (ac (ha)) Unit/subunit Area (ac (ha)) 

1A .................... 16,510 

(6,681 ) 

1A .................... 16,509 

(6,681 ) 

1A, 1B, 1C, 1D 4,675 

(1,892 ) 

1A, 1B, 1C, 1D 4,675 

(1,892 ) 

1B .................... 34,333 

(13,894 ) 

1B .................... 1 5,355 

(2,167 ) 

2A, 2B, 3A, 3B, 

3C.

4 11,215 

(4,539 ) 

3A, 3B, 3C ...... 6 7,212 

(2,919 ) 

1C .................... 1,490 

(603 ) 

1C ................... 0 2 (0 ) 4 ...................... 5218 

(88 ) 

4 ...................... 218 

(88 ) 

1D .................... 447 

(181 ) 

1D ................... 0 3 (0 ) (none) .............. (none ) (none) .............. (none ) 

Totals ........ 52,780 

(21,359 ) 

......................... 21,863 

(8,848 ) 

......................... 16,108 

(6,519 ) 

......................... 12,105 

(4,899 ) 

1 28,978 ac (11,727 ha) excluded from final designation under section 4(b)(2) of the Act. 

2Excluded 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. 

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(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 

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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 westfacing slopes where there is relative 

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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 sandmoving 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 °F (25 °C) or less, 

and no seeds germinated at 

temperatures of 86 °F (30 °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 (sandloving) scrub, characterized by Croton 

wigginsii (dunes croton), Eriogonum 

deserticola (desert buckwheat), 

Helianthus niveus ssp. tephrodes 

(Algodones Dunes sunflower), Palafoxia 

arida var. gigantean (giant Spanishneedle), 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 whitefaced 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 

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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 GISbased 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 

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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-ft2 (100- 

m2) 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.] 

Critical habitat unit Critical habitat 

subunit Land ownership1

Total area 

proposed 

(ac (ha)) 

Total area 

excluded 

(ac (ha)) 

Total area 

designated 

(ac (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) 

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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—Continued 

[Numbers have been rounded to the nearest whole digit and may overestimate area due to rounding.] 

Critical habitat unit Critical habitat 

subunit Land ownership1

Total area 

proposed 

(ac (ha)) 

Total area 

excluded 

(ac (ha)) 

Total area 

designated (ac 

(ha)) 

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) 

1BLM = Bureau of Land Management; State = California State Lands Commission. 

TABLE 4.—OCCUPANCY OF ASTRAGALUS MAGDALENAE VAR. PEIRSONII BY REVISED CRITICAL HABITAT UNITS

Critical habitat unit Occupied at time of 

listing? Currently occupied? Size of unit in 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 

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(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 StatesMexico international border issues (e.g., 

illegal border crossings and smuggling 

of goods and contraband) also exist in 

this management area resulting in 

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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: • Can be implemented in a manner 

consistent with the intended purpose of 

the action, • Can be implemented consistent 

with the scope of the Federal agency’s 

legal authority and jurisdiction, 

• Are economically and 

technologically feasible, and • 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 

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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, 

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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 

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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 

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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 nonprofit 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: 

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(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 

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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 

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private sector mandate’’ includes a 

regulation that ‘‘would impose an 

enforceable duty upon the private 

sector, except (i) a condition of Federal 

assistance or (ii) a duty arising from 

participation in a voluntary Federal 

program.’’

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal Government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. While nonFederal entities that receive Federal 

funding, assistance, or permits, or that 

otherwise require approval or 

authorization from a Federal agency for 

an action, may be indirectly impacted 

by the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply, nor would critical habitat 

shift the costs of the large entitlement 

programs listed above 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). 

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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 

■ 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] 

■ 1. The authority citation for part 17 

continues to read as follows: 

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

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

625, 100 Stat. 3500; unless otherwise noted. 

■ 2. In ;17.96(a), revise the entry for 

‘‘Family Fabaceae: Astragalus 

magdalenae var. peirsonii (Peirson’s 

Milk-Vetch)’’ to read as follows: 

§ 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 sandmoving 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: 

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(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, 

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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 ycoordinate 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 ycoordinate 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; 

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8784 Federal Register / Vol. 73, No. 31 / Thursday, February 14, 2008 / Rules and Regulations 

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: 

BILLING CODE 4310–55–P 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 73, No. 31 / Thursday, February 14, 2008 / Rules and Regulations 8785 

* * * * * 

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 


mstockstill on PROD1PC66 with RULES2ER14FE08.002</GPH>